Hernandez v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

2-14-2006

Hernandez v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-3832

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-3832

DOMINGO ANTONIO HERNANDEZ,

Petitioner

v.

*ALBERTO R. GONZALES, Attorney General of

The United States,

Respondent

*(Pursuant to Rule 43(c) FRAP)

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 04-cv-02186)

District Judge: Honorable Jerome B. Simandle

Argued November 16, 2005

Before: BARRY and AMBRO, Circuit Judges,

and POLLAK 1 , District Judge

1

Honorable Louis H. Pollak, United States District Judge

for the Eastern District of Pennsylvania, sitting by designation.

(filed February 14, 2006)

Joseph C. Hohenstein, Esquire (Argued)

Orlow & Orlow, PC

620 Chestnut Street, Suite 656

Philadelphia, PA 19106

Counsel for Petitioner

Christopher J. Christie

United States Attorney

Louis J. Bizzarri

Assistant U.S. Attorney

Matthew J. Skahill, Esquire (Argued)

U.S. Attorney’s Office

401 Market Street

P.O. Box 2098, 4th Floor

Camden, NJ 08101

Counsel for Respondent

OPINION OF THE COURT

AMBRO, Circuit Judge

Domingo Antonio Hernandez petitions us to rule, inter

alia, that the repeal of suspension of deportation under the

former Immigration and Nationality Act (INA) § 244(a) has

an impermissible retroactive effect on aliens like him who

2

pled guilty to a deportable offense and who would have been

eligible for suspension of deportation relief but for the repeal.

For the reasons provided below, we disagree.

I. Facts and Procedural Background

Hernandez, a native and citizen of the Dominican

Republic, entered the United States as a B-2 “visitor for

pleasure” on September 9, 1974, and was authorized to stay

in this country only until October 10, 1974. Hernandez,

however, remained in the United States beyond that date

without authorization from the Immigration and

Naturalization Service (INS).2

On June 27, 1984, Hernandez pled guilty in New York

state court to entering a plea of guilty to attempted criminal

possession of a controlled substance (cocaine) in the third

degree in violation of New York Penal Law § 220.16. As a

result, he was sentenced to five years probation.

On March 12, 1997, Hernandez married a United

States citizen who filed a visa petition on his behalf, which

was approved on August 14, 1997. In 1998, Hernandez filed

an application for adjustment of status (Form I-485) based on

his marriage. In his I-485 application, Hernandez did not

disclose his prior New York conviction. Hernandez’s

adjustment of status application was denied and a Notice to

Appear was issued on June 21, 1999, starting his removal

2

Since March 1, 2003, the INS has been merged into the

Department of Homeland Security, and is now called the

Bureau of Immigration and Customs Enforcement. However,

since the case began as an INS matter, we shall continue to refer

to the INS.

3

proceedings. The Notice to Appear charged Hernandez as

being removable from the United States pursuant to §

237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), as an

alien who after admission as a non-immigrant under INA §

101(a)(15) has remained in the United States longer than

permitted by overstaying his temporary visa.

Hernandez appeared before an Immigration Judge (IJ)

on December 13, 1999. At the hearing, he sought to pursue

his application for adjustment of status based on his marriage

pursuant to INA § 245 and, alternatively, sought discretionary

relief (voiding his removal) pursuant to INA § 240A. The IJ

ruled that Hernandez was ineligible for relief on both grounds

because of his 1984 New York conviction.

Hernandez appealed the IJ’s decision to the Board of

Immigration Appeals (BIA). It remanded the matter to the IJ

to clarify Hernandez’s identity and to ascertain specifically

whether the New York conviction actually pertained to him.

Moreover, the BIA pointed out that the Government had

failed to charge Hernandez with the prior conviction as a

basis of removal.

On September 27, 2000, the IJ ruled that the 1984

New York conviction was for Hernandez. The next day the

Government issued Additional Charges of

Inadmissibility/Deportability pursuant to INA §

237(a)(2)(B)(i), charging Hernandez with being removable as

an alien who has been convicted of a law or regulation of a

State, the United States, or a foreign country relating to a

controlled substance.

On August 13, 2002, a hearing was held and, on the

basis of the 1984 criminal conviction, the IJ determined that

Hernandez was ineligible for the relief he sought. Hernandez

4

again appealed to the BIA. Excepting the IJ’s ruling that

Hernandez had been convicted of an “aggravated felony,” the

BIA affirmed the IJ’s decision.

Hernandez, who was not in INS custody, sought a writ

of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3) in the

United States District Court for the District of New Jersey.

The District Court entertained Hernandez’s § 2241 petition

but denied him relief on the basis that he failed to satisfy the

criteria for entitlement of the relief he sought. He know seeks

our review.

II. Jurisdiction

Under the new judicial review regime imposed by the

Real ID Act, Pub. L. No. 109-13, div. B, 119 Stat. 231

(2005), a petition for review is now the sole and exclusive

means of judicial review for all orders of removal except

those issued pursuant to 8 U.S.C. § 1225(b)(1). See 8 U.S.C.

§ 1252(a)(5). Our jurisdiction was also enlarged, as we now

have the authority to consider constitutional claims or

questions of law raised in a criminal alien’s petition for

review. 8 U.S.C. § 1252(a)(2)(D). Moreover, all habeas

corpus petitions brought by aliens that were pending in the

district courts on the date the Real ID Act became effective

(May 11, 2005) were converted to petitions for review and

transferred to the appropriate courts of appeals. See Real ID

Act, Pub. L. No. 109-13, div. B, tit. I, § 106(c). We have

held that habeas petitions that were pending before our Court

on the effective date of the Real ID Act—such as the one in

this case—were properly converted to petitions for review

and retained by us. Bonhometre v. Gonzales, 414 F.3d 442,

446 (3d Cir. 2005). Indeed, we are obliged to vacate the

District Court’s opinion and address the claims raised in

5

Hernadez’s habeas petition as if they were presented before

us in the first instance as a petition for review. Kamara v.

Attorney General of U.S., 420 F.3d 202, 210 (3d Cir. 2005).3

III. Merits

Hernandez seeks a ruling on the merits of his

application seeking to avoid removal from the United States.

In support of his request for relief, he presents two

arguments. First, he maintains that he has a due process right

to a hearing on the merits of his discretionary relief

application. Second, he submits that, because he filed an

application for discretionary relief, the INS is statutorily

bound to consider it pursuant to former section 244(a) of the

INA.

On April 1, 1997, “suspension of deportation” relief,

INA § 244(a), 8 U.S.C. § 1254(a), was repealed and replaced

by “cancellation of removal” relief, INA § 240A, 8 U.S.C. §

1229b(b), when Congress passed the Illegal Immigration

Reform and Immigrant Responsibility Act, Pub. L. No.

104-208, div. C., 110 Stat. 3009 (1996) (IIRIRA). Under the

former relief, a non-permanent resident alien against whom

3

Although Hernandez’s appeal of the District Court’s

denial of his habeas petition has now been converted into a

petition for review, our standard of review remains the same.

Bonhometre, 414 F.3d 442, 445. “A review for ‘constitutional

claims or questions of law,’ as described in § 106(a)(1)(A)(iii)

of the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), mirrors our

previously enunciated standard of review over an alien’s habeas

petition.” Kamara, 420 F.3d at 211. Thus, we review

Hernandez’s constitutional and legal questions de novo. Id.

6

deportation proceedings on most criminal grounds had begun

could apply for suspension of deportation, provided he had

been physically present continuously in the United States for

ten years immediately following the criminal act constituting

the grounds for deportation, had good moral character, and

could show that deportation would work a severe hardship on

him or on certain United States citizen relatives. See INA §

244(a), 8 U.S.C. § 1254(a) (repealed 1996). By contrast,

“cancellation of removal” provides for relief from removal

where an non-permanent resident alien (1) has been present

in the United States continuously for ten years, (2) has had

“good moral character” during that period, (3) has no

convictions for disqualifying crimes,4 and (4) has a spouse,

parent, or child who is a U.S. citizen or lawful alien and for

whom the applicant’s removal would lead to “exceptional

and extremely unusual hardship.” INA § 240A, 8 U.S.C. §

1229b(b)(1).

A. Due Process

As noted, Hernandez argues that due process demands

he be permitted to apply for discretionary relief seeking to

avoid removal from the United States. The procedural

component of the Fifth Amendment’s Due Process Clause

protects against the deprivation of life, liberty, or property

4

Any controlled-substance conviction—other than a

single offense involving possession for one’s own use of 30

grams or less of marijuana—is a disqualifying crime. See 8

U.S.C. § 1229b(b)(1)(C) (citing 8 U.S.C. § 1227).

7

without “due process of law.” U.S. Const. amend. V. The

necessary first step in evaluating any procedural due process

claim is determining whether a constitutionally protected

interest has been implicated.

Hernandez is correct in contending that aliens within

the United States may not be deprived of liberty or property

without due process. Mathews v. Diaz, 426 U.S. 67, 77

(1976); Shaughnessy v. United States ex rel. Mezei, 345 U.S.

206, 212 (1953) (“It is true that aliens who have once passed

through our gates, even illegally, may be expelled only after

proceedings conforming to traditional standards of fairness

encompassed in due process of law.”). But, like others, aliens

must in the first instance possess a liberty or property interest.

See Bd. of Regents v. Roth, 408 U.S. 564, 569-71 (1972).

Aliens who seek only discretionary relief from deportation

have no constitutional right to receive that relief. Cf.

Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465

(1981).5 Rather, the ability of those aliens to remain in the

5

In Dumschat, the Supreme Court held that a state inmate

does not enjoy a constitutionally protected liberty interest in

having his or her sentence commuted, even where the state

“consistently” commuted the sentences of inmates in “most”

cases. 452 U.S. at 464-65. The Court reasoned that “a

constitutional entitlement cannot ‘be created--as if by

estoppel--merely because a wholly and expressly discretionary

state privilege has been granted generously in the past.’” Id. at

465 (quoting Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979)).

Instead, according to the Court, “[i]n terms of the Due Process

Clause, a . . . felon’s expectation that a lawfully imposed

8

United States is a matter of “permission and tolerance.”

Harisiades v. Shaughnessy, 342 U.S. 580, 586-87 (1952). It

as an “act of grace” that, like a presidential pardon, is

extended in the Attorney General’s “unfettered discretion.”

INS v. Yang, 519 U.S. 26, 30 (1996) (internal quotations

omitted). In this context, Hernandez is not deprived of a

liberty or property interest.6 See Tefel v. Reno, 180 F.3d

1286, 1301 (11th Cir. 1999).7

B. Retroactivity

Hernandez alternatively argues on appeal that

IIRIRA’s repeal of suspension of deportation, former INA §

sentence will be commuted or that he will be pardoned is no

more substantial than an inmate’s expectation, for example, that

he will not be transferred to another prison; it is simply a

unilateral hope.” Id. (internal footnote omitted). The same

analysis applies here.

6

Of course, to condition eligibility for the discretionary

privilege of suspension of deportation on some irrational or

invidious characteristic—e.g., gender, or age, or political or

religious affiliation—would pose constitutional concerns.

7

Moreover, Hernandez’s attempt to argue that a

constitutional injury stems not from being denied suspension of

deportation, but from being rendered ineligible to be considered

for suspension, fails. This “argument draws a distinction

without a constitutional difference. Where no deprivation of a

liberty or property interest has occurred, no violation of

procedural due process has occurred.” Id.

9

244(a), has an impermissible retroactive effect. Relying on

INS v. St. Cyr, 533 U.S. 289 (2001), and Ponnapula v.

Ashcroft, 373 F.3d 480 (3d Cir. 2004), Hernandez essentially

maintains that the retroactivity analysis applicable to

IIRIRA’s repeal of the former INA § 212(c) is

interchangeable with the analysis to be applied to the repeal

of INA § 244(a) and, as a result, he is entitled to § 244(a)

suspension of deportation.

The Government, on the other hand, maintains that

aliens such as Hernandez, who are in the United States

illegally, enjoy no right to continue living here and, in

entering a guilty plea to a criminal charge, did not alter their

course in the criminal justice system in reliance on the

availability of § 244(a) relief. In other words, because

Hernandez had no reasonable reliance on the availability of

suspension of deportation when he entered his guilty plea and

remained in the United States illegally, IIRIRA’s repeal of

suspension of deportation does not work an impermissible

retroactive effect.

Under former § 212(c) of the INA, 8 U.S.C. § 1182(c)

(repealed 1996), deportable aliens who had accrued seven

years of lawful permanent residence in the United States

could request discretionary relief from deportation by arguing

that the equities weighed in favor of their remaining in the

United States. Even an alien deportable because he had been

convicted of an aggravated felony, see 8 U.S.C. §

1227(a)(2)(A)(iii), was eligible for this discretionary relief if

he served a term of imprisonment less than five years. See 8

U.S.C. § 1182(c). There was also a strong likelihood that this

relief would be granted; indeed, the Attorney General granted

it in over half of all cases in which it was sought. See St. Cyr,

10

533 U.S. at 296 & n.5. Moreover, the relief was predictably

granted where certain factors were present, including family

ties within the United States, residence of long duration in

this country, evidence of hardship to the immigrant’s family

as a result of deportation, and a stable history of employment.

See In re Marin, 16 I & N Dec. 581, 584-85 (BIA 1978).

Section 304(b) of IIRIRA repealed § 212(c) relief

entirely, replacing it (as noted) with a procedure called

“cancellation of removal,” see 8 U.S.C. § 1229b, and

providing the revised form of relief is not available to an

alien convicted of any aggravated felony. The definition of

“aggravated felony” was retroactively expanded to include

dozens more offenses, including misdemeanor and low-level

felony offenses. See 8 U.S.C. § 1101(a)(43). The practical

effect of the repeal of § 212(c) relief, in conjunction with

several other statutory amendments, is that a far larger

number of immigrants are now removable under the new law,

while a much smaller number are eligible for any form of

relief from removal.

In INS v. St. Cyr, 533 U.S. at 326, the Supreme Court

held that discretionary relief under former § 212(c) “remains

available for aliens . . . whose convictions were obtained

through plea agreements and who . . . would have been

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

law then in effect.” The Court was asked to determine

whether IIRIRA section 304(b) applied retroactively. After

concluding that Congress did not provide a sufficiently clear

command with respect to the temporal reach of the repeal of

former § 212(c) by IIRIRA section 304(b), the Court applied

the next step under the familiar principles of Landgraf v. USI

11

Film Products, 511 U.S. 244 (1994),8 to determine whether

the repeal had an impermissible retroactive effect. Landgraf

cataloged a history of Supreme Court precedents establishing

a “presumption against statutory retroactivity,” id. at 270, in

the absence of a clear command from Congress. A statute

will be impermissibly retroactive when it attaches new legal

consequences to prior events because its application “would

impair rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new duties with

respect to transactions already completed.” Id. at 280. The

question whether a new statute attaches new legal

consequences to prior conduct “demands a common sense,

functional judgment” that “should be informed and guided by

‘familiar considerations of fair notice, reasonable reliance,

and settled expectations.’” Martin v. Hadix, 527 U.S. 343,

357-58 (1999) (quoting Landgraf, 511 U.S. at 270).

In St. Cyr, the Court concluded that the retroactive

application of IIRIRA section 304(b) would have an

8

In deciding whether the repeal of INA § 212(c) should

be applied retroactively, the Supreme Court applied the two-step

analysis it had previously set out in Landgraf. See St. Cyr, 533

U.S. at 315-26. Under Landgraf, the first step to decide whether

a statute has a retroactive effect is “to ascertain whether

Congress ha[s] directed with the requisite clarity that the law be

applied retrospectively.” Id. at 316 (internal citations omitted).

The second step of the Landgraf analysis is deciding whether

applying the statute retroactively has an impermissible effect.

Id. at 321.

12

impermissible retroactive effect on aliens–such as St.

Cyr–who had pled guilty prior to the repeal of § 212(c). The

Court highlighted the quid pro quo of the criminal plea

agreement, and reasoned that because aliens like St. Cyr

almost certainly relied on the likelihood of receiving

discretionary relief in deciding whether to forgo their right to

a trial, the elimination of any possibility of § 212(c) relief by

IIRIRA had an obvious and significant retroactive effect. St.

Cyr, 533 U.S. at 322 (“In exchange for some perceived

benefit, defendants waive several of their constitutional rights

. . . and grant the government numerous tangible benefits.”).

We recently extended St. Cyr’s impermissible

retroactivity analysis to aliens who elect to go to trial.9

9

We have taken a more expansive view than several of

our sister circuits on this issue. For instance, the Courts of

Appeals for the Second and Fourth Circuits have confined St.

Cyr to the plea-agreement context on the understanding that a

quid pro quo is required. See Swaby v. Ashcroft, 357 F.3d 156,

161-62 (2d Cir. 2004); Rankine v. Reno, 319 F.3d 93, 100 (2d

Cir. 2003); Chambers v. Reno, 307 F.3d 284, 290-91 (4th Cir.

2002). Other courts of appeals have also limited St. Cyr’s

retroactivity holding to the plea-bargain context without

specifically invoking the quid pro quo language from it. See

Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004) (per

curiam); Dias v. INS, 311 F.3d 456 (1st Cir. 2002);

Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. 2002);

Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002). A related

argument advanced by the Government in these cases is that the

immigrant has “rolled the dice” by going to trial and thereby

13

Ponnapula v. Ashcroft, 373 at 491 (stating that “the courts

that have held that IIRIRA’s repeal of § 212(c) relief is not

impermissibly retroactive with respect to aliens who went to

trial . . . have erected too high a barrier to triggering the

presumption against retroactivity”). Ponnapula involved an

alien who had been indicted by a New York state grand jury,

along with several other defendants, for grand larceny in the

first degree, N.Y. Penal Law § 155.42, and falsifying

business records in the first degree, N.Y. Penal Law §

175.10. 373 F.3d at 483. Subsequent to indictment,

Ponnapula and the Manhattan District Attorney’s Office

engaged in plea negotiations. Ponnapula considered a plea

offer and the immigration consequences of pleading guilty

versus going to trial. His counsel advised him that, if he was

convicted, he would very likely receive the minimum

sentence of only one to three years imprisonment, which is

less than the five years necessary to disqualify an alien from §

212(c) relief. Accordingly, Ponnapula reasonably believed

that, even if he were convicted of a felony after trial, he

would still likely be eligible for hardship relief from

deportation pursuant to former § 212(c). In reliance on this

advice, Ponnapula decided to turn down the misdemeanor

offer and proceeded to trial. He was convicted of both counts

in the indictment and sentenced to the minimum term of

imprisonment – one to three years.

After Ponnapula was allowed out of prison on work

release, the INS filed a detainer and warrant for a removal

forfeited any claim to certainty. See, e.g., Chambers, 307 F.3d

at 291-92.

14

hearing. At the conclusion of a hearing, an immigration

judge found Ponnapula removable from the United States.

On appeal, the BIA affirmed, holding that St. Cyr could not

be extended beyond defendants who had pleaded guilty.

On review to our Court, the Government argued that

Ponnapula’s retroactivity claim failed because St. Cyr rests

uniquely on the existence of the quid pro quo of criminal plea

agreements. Indeed, this was the view adopted by the Second

Circuit when faced with the same issue in Rankine v. Reno,

319 F.3d 93, 100 (2d Cir. 2003). There, it laid out the

Supreme Court’s modern retroactivity doctrine, see id. at

98-99, and then explained that the petitioners’ “choice to go

to trial puts [them] on different footing [from St. Cyr] in two

crucial respects.” Id. at 99.

First, none of these petitioners detrimentally

changed his position in reliance on continued

eligibility for § 212(c) relief. Unlike aliens who

entered pleas, the petitioners made no decision

to abandon any rights and admit guilt-thereby

immediately rendering themselves deportable-in

reliance on the availability of the relief offered

prior to IIRIRA. The petitioners decided

instead to go to trial, a decision that, standing

alone, had no impact on their immigration

status. Unless and until they were convicted of

their underlying crimes, the petitioners could

not be deported.

* * * * *

Second, the petitioners have pointed to no

conduct on their part that reflects an intention to

preserve their eligibility for relief under §

15

212(c) by going to trial. If they had pled guilty,

petitioners would have participated in the quid

pro quo relationship, in which a greater

expectation of relief is provided in exchange for

forgoing a trial, that gave rise to the reliance

interest emphasized by the Supreme Court in St.

Cyr. As the Court made clear, it was that

reliance, and the consequent change of

immigration status, that produced the

impermissible retroactive effect of IIRIRA.

Here, petitioners neither did anything nor

surrendered any rights that would give rise to a

comparable reliance interest.

Id. at 99-100 (citation omitted).

We rejected this rationale for three reasons. First, we

noted that the “Second Circuit’s lack of emphasis on the

presumption against retroactivity is in considerable tension

with the Supreme Court’s consistent treatment of retroactivity

analysis.” Ponnapula, 373 F.3d at 490 (emphasis in

original). Indeed, the Second Circuit’s approach had the

effect of treating Landgraf as establishing a presumption in

favor of retroactive application. Id. This would be wrong, as

the Supreme Court has held explicitly that a federal court of

appeals erred by concluding that Landgraf contained a

“strong presumption in favor of retroactivity.” Hughes

Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939,

950 (1997) (stating “[t]he Ninth Circuit simply misread our

decision in Landgraf, for the only ‘presumption’ mentioned

in that opinion is a general presumption against

retroactivity”) (emphasis in original).

Second, we observed that the Rankine passage cited

16

above discussing a detrimental change in position appears to

require actual reliance by the party seeking to avoid

retroactive application despite the fact that the Supreme Court

has never required actual reliance in any case in the Landgraf

line. Id. at 489. We noted that “[t]he likelihood that the party

before the court did or did not in fact rely on the prior state of

the law is not germane to the question of retroactivity.” Id. at

493 (concluding that “the Supreme Court has avoided an

‘actual reliance’ formulation in favor of a ‘reasonable

reliance’ formulation in its retroactivity analysis”). “Rather,

courts are to concentrate on the group to whose conduct the

statute is addressed – in Landgraf it was employers subject to

Title VII; in Hughes Aircraft it was government contractors;

in Hadix it was attorneys performing prison reform

monitoring services; in St. Cyr it was aliens who accepted a

plea agreement – with a view to determining whether reliance

was reasonable.” Id. In sum, “[t]he Landgraf line . . .

establishes that a change in law can be found impermissibly

retroactive without establishing that some (or all) members of

the group affected by the change in law relied on the prior

state of the law.” Id.

Finally, we expressed our concern with the Second

Circuit’s objection that “petitioners have pointed to no

conduct on their part that reflects an intention to preserve

their eligibility for relief under § 212(c)” because that

statement suggests that the party seeking to avoid retroactive

application bears an evidentiary burden, another requirement

nowhere to be found in Landgraf or its progeny. Id. at 490.

Relying heavily on these three points of contention

with the Second Circuit, we concluded that a defendant who

goes to trial believing that his opportunity to seek § 212(c)

17

relief is secure is as equally disrupted in his reasonable and

settled expectations as is a defendant who accepts a plea

believing it to confer such a benefit. Id. at 496. Accordingly,

Ponnapula was entitled to apply for discretionary withholding

of deportation under former § 212(c). Id.

The Government contends that St. Cyr and Ponnapula

do not apply to aliens such as Hernandez because, unlike him,

the aliens represented in St. Cyr and Ponnapula had some

reasonable reliance in the availability of discretionary relief.

That is, because the St. Cyr and Ponnapula aliens had

accrued seven years of lawful permanent residence, they were

eligible to seek § 212(c) relief at the time of their plea or jury

trial. Moreover, those aliens were aware that a criminal

conviction, either via a guilty plea or jury trial, was not an

automatic bar to their application. Indeed, aliens who pled

guilty or were convicted at trial and sentenced to less than

five years imprisonment still could apply for § 212(c) relief.

Thus, while the St. Cyr and Ponnapula aliens altered their

courses in the criminal justice system seeking to preserve

eligibility for discretionary withholding of deportation, such

reasonable reliance is not present for aliens such as

Hernandez who pled guilty prior to the repeal of former INA

§ 244(a).

As previously discussed, under the now-repealed §

244(a), the Attorney General could suspend deportation, and

adjust the status to that of an alien lawfully admitted for

permanent residence, for a non-permanent resident alien who

applied to the AG for suspension of deportation and

subsequent to his or her deportable offense had been

physically present in the United States for a continuous

period of not less than ten years following the commission of

18

the deportable act. Such an alien must additionally prove that

he or she has been a person of good moral character for the

entire ten-year period and that he or she is someone whose

deportation would result in exceptional and extremely

unusual hardship personally or to his or her spouse, parent or

child who is a United States citizen or lawful permanent

resident. 8 U.S.C. § 1254(a).

Simply stated, under the pre-1996 statutory scheme,

when an alien such as Hernandez pled guilty to a deportable

offense, he had to remain in the United States for an

additional period of ten years under the above-described

terms and conditions before he would even be eligible for

discretionary relief. If that alien was served with an Order to

Show Cause or a Notice to Appear prior to the completion of

the ten-year period, he necessarily would be deportable and

ineligible for application of § 244(a) relief. Therefore, the

Government maintains, aliens in the group represented by

Hernandez do not have a reasonable reliance on the

availability of suspension of deportation when entering a plea

of guilty and altering their course in the criminal justice

system because, prior to entry of such a plea, the alien would

not have been eligible for § 244(a) relief10 and would be

10

Here, the Government is wrong. There is no dispute

that prior to his 1984 guilty plea, Hernandez’s eligibility was

governed by “suspension of deportation” relief, former INA §

244(a), not “cancellation of removal relief” as now defined by

INA § 240A. Because Hernandez had no convictions and had

been in the United States since 1974, he was eligible to apply for

relief prior to his 1984 guilty plea (for which he would have

19

ineligible for § 244(a) relief for an additional ten years.

Hernandez counters that the group he represents –

people who pled guilty prior to a change in the law and who

were eligible for suspension relief prior to that change – had

reason to believe that suspension relief was available. Citing

Landgraf, 511 U.S. at 269, he submits that, whether the

repeal of § 244(a) took away his statutorily vested rights, it

certainly “attache[d] a new disability” to his past actions,

which constitutes a change in the law no different than the

change effected on the aliens in St. Cyr and Ponnapula. For

the reasons provided below, we disagree.

As a starting point and similar to the conclusion

reached by the Supreme Court in St. Cyr, we hold that

IIRIRA does not state with sufficient clarity that its repeal of

§ 244(a) suspension of deportation relief is intended to apply

to an alien in Hernandez’s position, such that it must be

applied even if its operation is retroactive. Like the section

of IIRIRA repealing § 212(c) suspension of deportation

relief, the statutory provision – stating merely, “strike section

244 (8 U.S.C. § 1254)” – does not “expressly prescribe [its ]

proper reach.” Landgraf, 511 U.S. at 280. Because the

statute does not clearly state that it is to be applied

retroactively, we proceed to the second step of the Landgraf

analysis.

To prevail there, Hernandez must show that the repeal

of suspension of deportation has a retroactive effect on aliens

like him who pled guilty to a controlled substance offense

needed to show good moral character and severe hardship)

under § 244(a).

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prior to the change in the law and were eligible for

suspension of deportation relief prior to that change. As

detailed above, the Court in St. Cyr noted that in determining

“whether a particular statute acts retroactively, [the Court]

should be informed and guided by familiar considerations of

fair notice, reasonable reliance, and settled expectations.” Id.

at 321 (internal quotations omitted). Specifically, the Court

considered the plea bargain entered by St. Cyr, and asked

whether the application of IIRIRA “‘attaches a new disability,

in respect to transactions or considerations already past.’” Id.

(quoting Landgraf, 511 U.S. at 269).

In applying the second Landgraf step, and based on

reasoning similar to that presented by the Government here,

two circuit courts have denied claims relating to suspension

of deportation eligibility that are relevant to our analysis. See

Karageorgious v. Ashcroft, 374 F.3d 152 (2d Cir. 2004);

Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir. 2002).

In Karageorgious, father and son aliens presented themselves

to the INS by filing an application for suspension of

deportation. 374 F.3d at 154. Indeed, the petitioners filed

their application on March 28, 1997, in anticipation of the

April 1, 1997 effective date repealing suspension of

deportation. Id. The petitioners were potentially eligible for

suspension of deportation but not eligible for cancellation of

removal. Id. The decision of the father and son to present

themselves to immigration authorities was premised on the

express desire of preserving their eligibility for suspension of

deportation post-IIRIRA. Id.

The Second Circuit Court held that the petitioners

were not similarly situated to the alien class at issue in St. Cyr

and, thus, the repeal was not impermissibly retroactive. Id. at

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156. Citing a case from our Circuit, the Court held that the

repeal of suspension of deportation did not apply

retroactively because the repeal did not attach any new legal

consequences to the petitioners’ pre-IIRIRA conduct:

As the Third Circuit explained in Uspango v.

Ashcroft, petitioners “gave up no rights by

filing the[ir] petition [for suspension].” 289

F.3d 226, 230 (3rd Cir. 2002).11 Petitioners had

no right to remain “living illegally and

undetected in the United States.” Therefore,

they relinquished no rights and acquired no new

obligations when they turned themselves in to

the INS. In effect, petitioners are no different

from aliens who chose not to apply for

suspension of deportation prior to the date on

which IIRIRA became effective.

Id. (citations and quotation omitted).

Much like the petitioners in Karageorgious, the

petitioner in Jimenez-Angeles brought herself to the attention

of the INS in March 1997 in an attempt to begin a process

that would enable her to apply for suspension of deportation.

291 F.3d at 597. Jimenez-Angeles argued that she was like

the alien in St. Cyr, who pled guilty prior to IIRIRA’s

effective date, and thus had a reliance interest in the

availability of § 212(c) relief. Id. at 600. The Ninth Circuit

Court concluded that Jimenez-Angeles’ circumstances

11

Uspango dealt with when to begin counting the

requisite physical presence requirement, which is not at issue in

this case.

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differed significantly from those in St. Cyr, as

[t]he factors that militated in favor of St. Cyr–in

particular, his ‘settled expectations’ based on

‘transactions or considerations already past’–

are not present in Jimenez-Angeles’ case. . .

.When St. Cyr entered into his plea bargain, he

gave up valuable legal rights, including his

right to trial by jury. By contrast, when

Jimenez- Angeles revealed herself to the INS,

she gave up only her ability to continue living

illegally and undetected in the United States.

Id. at 602.

Because our colleagues in the Second and Ninth

Circuits engage in a retroactivity analysis different from the

one we apply, Karageorgious and Jimenez-Angeles are

distinguishable. As explained in Ponnapula, under our

retroactivity standards, a presumption against retroactivity is

“easily triggered” (though not automatic), see 373 F.3d at

490-91, and we do not look to the actual reliance of the

petitioner bringing the claim, id. at 493. Indeed, Hernandez

relies on Ponnapula for the proposition that, when he

revealed his unlawful status by filing an application for

adjustment of status, he had a settled expectation that, if that

application was denied, he would be able to request

suspension of deportation. Ponnapula notwithstanding, this

argument is unpersuasive for several reasons.

First, we take issue with Hernandez’s claim that he

voluntarily revealed his unlawful status because the record

makes clear that Hernandez failed to disclose his 1984 New

York conviction in his adjustment of status application.

Moreover, he was eligible to request suspension of

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deportation on June 27, 1994 – nearly three years before the

effective repeal of § 244(a) – but he did not reveal himself to

authorities to make such a request until well after the repeal

of that section. By contrast, it was undisputed that the

petitioners in Karageorgious and Jimenez-Angeles

voluntarily revealed their illegal status to the INS, and in fact

did so prior to the repeal of either § 244(a) or § 212(c) of the

INA. Notably, the Karageorgious and Jimenez-Angeles

petitioners’ claims still failed because they relinquished no

rights and acquired no new obligations by turning themselves

in to the INS.

More importantly, Hernandez cannot credibly claim a

retroactive effect from his guilty plea because immediately

after he entered his plea he was ineligible for any kind of

relief and, in fact, would remain ineligible for any kind of

relief for a decade. This fact distinguishes Hernandez from

the petitioners in St. Cyr and Ponnapula, both of whom were

qualified to apply for § 212(c) relief at the time they made

their respective decisions to plead guilty and go to trial, as

each petitioner had already accrued the requisite years of

lawful permanent residence in the United States. Simply

stated, Hernandez did not and could not enter his plea in

reliance on § 244(a) relief.

In essence, then, all that Hernandez can claim a

retroactive effect from is his voluntary communication with

the INS to apply for a benefit – adjustment of status based on

his marriage to a United States citizen. The unstated crux of

Hernandez’s claim is that he would not have applied for an

INS benefit if he had known that he was ineligible for §

244(a) relief. We refuse to rule that the repeal of § 244(a)

attaches a new disability to Hernandez’s decision to concede

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voluntarily his alienage post-IIRIRA because such a

determination implicitly presumes that Hernandez had some

right to continue to conceal his illegal status. As explained

above, Hernandez had every opportunity to reveal himself to

the INS while the pre-IIRIRA rules were still in effect and, at

that juncture, could have reasonably relied on then-extant §

244(a) relief. Because Hernandez’s application for

adjustment of status amounts to a decision to give up

something to which he had no right in the first place—his

ability to continue living illegally in the United States—we

conclude that Hernandez’s 1999 concession of his alienage

does not cause Congress’ repeal of suspension of deportation

as applied to him to be impermissibly retroactive.

* * * * *

For the reasons detailed above, due process does not

demand Hernandez be permitted to apply for suspension of

deportation. Moreover, the 1996 repeal of suspension of

deportation under section 244(a) of the INA does not have an

impermissibly retroactive effect on aliens who both pled

guilty to a deportable offense prior to the repeal of that

section and were eligible for relief prior to its repeal. In this

context, Hernandez’s petition for review is denied.

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