The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals
February 17, 2005
For the Fifth Circuit
Charles R. Fulbruge III
_________________________ Clerk
No. 04-20164
_________________________
CARLOS ALVAREZ-HERNANDEZ,
Petitioner - Appellant,
versus
HIPOLITO M. ACOSTA, District Director;
ALBERTO GONZALES, U.S. Attorney General,
Respondents - Appellees.
_________________________
Appeal from the United States District Court
For the Southern District of Texas
_________________________
Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This case involves an alien who pleaded guilty to a felony
charge before Congress repealed the waiver of deportation made
available by § 212(c) of the Immigration and Nationality Act, but
whose judgment of conviction was entered afterward. Following the
Board of Immigration Appeals’ rejection of the alien’s § 212(c)
application, the district court entertained his habeas petition.
The court rejected the BIA’s conclusion that access to § 212(c) was
foreclosed by entry of the judgment of conviction after § 212(c)’s
repeal, but accepted the Government’s argument that the alien was
ineligible for relief because he had failed to accrue the requisite
seven years unrelinquished domicile in the United States by the
date of his guilty plea. We reverse and remand.
I
Carlos Alvarez-Hernandez entered the United States illegally
at the age of fifteen. He obtained temporary lawful residence
through an amnesty program in 1988, and became a lawful permanent
resident in 1991. He was arrested and indicted for aggravated
delivery of a controlled substance, and pleaded guilty to this
charge on November 7, 1994. That same day, the court issued an
order accepting the plea and entered it on the minutes. The case
was reset throughout 1995 and 1996. Final judgment of conviction
imposing a sentence of ten years’ probation was entered on March 7,
1997.
In August 1998, the INS commenced removal proceedings against
Alvarez based on his aggravated felony controlled substance
conviction. Alvarez admitted the truth of the INS’s factual
allegations, and sought relief under, inter alia, former § 212(c)
of the Immigration and Nationality Act.1 The Immigration Judge
ordered Alvarez removed to El Salvador, and denied relief under
§ 212(c) on grounds that it had been repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”).2 Alvarez appealed the IJ’s ruling to the Board of
1
8 U.S.C. § 1182(c) (repealed 1996).
2
Pub. L. No. 104-208, Div. C, Title III, § 304(b), 110 Stat. 3009, 3597
(1996).
2
Immigration Appeals.
While Alvarez’s appeal was pending before the BIA, the Supreme
Court decided INS v. St. Cyr,3 in which it held that the repeal of
§ 212(c) could not be applied retroactively to deny relief to
aliens whose convictions were obtained by plea agreements and who
would have been eligible for relief at the time of their pleas.
Alvarez argued to the BIA that St. Cyr applied to him because he
pleaded guilty to the drug charge in 1994, roughly two years before
§ 212(c) was repealed. The BIA rejected this argument, noting that
Alvarez had not been formally convicted until 1997, and affirmed
the decision of the IJ.
Alvarez filed a habeas corpus petition under 28 U.S.C. § 2241
arguing that St. Cyr entitled him to apply for relief under
§ 212(c). The Government moved for summary judgment, contending
that St. Cyr did not apply because judgment was not entered on
Alvarez’s conviction until 1997. In addition, the Government
argued that, even if the date of Alvarez’s guilty plea controlled,
he was ineligible for relief under § 212(c) because he lacked seven
years of continuous lawful domicile on the date of his plea. The
district court granted the Government’s motion for summary
judgment. The court found that the date on which a convicted
alien’s guilty plea is accepted determines whether the application
of the IIRIRA bar to the alien’s § 212(c) claim for relief produces
3
533 U.S. 289 (2001).
3
impermissible retroactive effect under St. Cyr. However, the court
also found that an alien must have been eligible for § 212(c)
relief at the time of his plea in order to circumvent the IIRIRA
bar. Because Alvarez lacked the requisite seven years of lawful
domicile required for § 212(c) relief at the time he entered his
plea, the court denied his petition. Alvarez filed a timely notice
of appeal.
II
We review the district court’s dismissal of a habeas petition
on summary judgment de novo.4 On appeal, Alvarez argues that the
district court erred in finding that an alien must have accrued at
least seven years of lawful domicile within the United States at
the time of his plea in order to be eligible for § 212(c) relief
under St. Cyr. The Government, on the other hand, contends that
the district court incorrectly found that St. Cyr looks to the date
of an alien’s guilty plea, and not the date of the judgment of
conviction, to determine whether impermissible retroactive effect
is present.
Prior to its repeal, § 212(c) allowed the Attorney General to
“waive deportation of eligible permanent resident aliens, including
those [who had been] convicted of controlled substances offenses.”5
In order to qualify for relief under § 212(c), an alien needed to
4
Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 327 (5th Cir. 2004).
5
Ghassan v. INS, 972 F.2d 631, 633-34 (5th Cir. 1992).
4
show that (1) he was admitted for permanent residence in the United
States, and (2) he has “maintained a lawful unrelinquished domicile
in the United States for seven consecutive years.”6 With respect
to the first requirement, our court has found that an alien’s
status as a lawful permanent resident terminates upon the
administrative finalization of the alien’s deportation order.7
With respect to the second requirement, our court has found that an
alien’s period of lawful domicile begins running upon the alien’s
acquisition of some form of lawful resident status, either
temporary or permanent, and terminates when the INS commences
deportation proceedings against the alien.8
In 1996, Congress repealed the § 212(c) waiver through passage
of the IIRIRA. The INS adopted the position that this repeal
applied to all removal proceedings initiated after April 1, 1997,
the effective date of the IIRIRA, regardless of whether the
affected alien pleaded guilty to the charge forming the basis of
removal prior to the repeal. The Supreme Court repudiated this
position in St. Cyr. Applying the retroactivity analysis set forth
6
Ashby v. INS, 961 F.2d 555, 557 (5th Cir. 1992).
7
See Rivera v. INS, 810 F.2d 540, 541 (5th Cir. 1987) (citing In re Lok,
18 I&N Dec. 101, 105 (BIA 1981)).
8
See Pritchard-Ciriza v. INS, 978 F.2d 219, 223-25, 224 n.9 (5th Cir.
1992) (finding that an alien need only be “lawfully” present for seven years in
order to apply for a § 212(c) waiver, and observing that “eligibility for
§ 212(c) relief is determined as of the date the order to show cause is issued”).
5
in Landgraf v. USI Film Products,9 the Court analyzed the text of
the IIRIRA and concluded that it did not contain an unambiguous
direction commanding retroactive effect with respect to its repeal
of § 212(c).10
The Court then turned to the question of whether “depriving
removable aliens of consideration for § 212(c) relief produces an
impermissible retroactive effect for aliens who . . . were
convicted pursuant to a plea agreement at a time when their plea
would not have rendered them ineligible for § 212(c) relief.”11 The
Court observed that the inquiry into whether a statute produces
impermissible retroactive effect requires a determination about
whether the statute attaches new legal obligations, duties, or
disabilities to events or transactions “completed before its
enactment.”12 This determination, the Court noted, should be
“informed and guided by familiar considerations of fair notice,
reasonable reliance, and settled expectations.”13
The Court found that the IIRIRA’s elimination of § 212(c)
relief attached a new disability to those aliens who had reached
plea agreements with the expectation that § 212(c) would be
9
511 U.S. 244 (1994).
10
St. Cyr, 533 U.S. at 316-20.
11
Id. at 320.
12
Id. at 321 (citations and internal quotation marks omitted).
13
Id. (citations and internal quotation marks omitted).
6
available to them.14 The Court observed that it would be contrary
to “familiar considerations of fair notice, reasonable reliance,
and settled expectations” to deprive such aliens of any possibility
of relief under § 212(c) when they had relied upon “settled
practice, the advice of counsel, and perhaps even assurances in
open court that the entry of the plea would not foreclose § 212(c)
relief.”15 Based in part on these observations, the Court held that
Ҥ 212(c) relief remains available for aliens, like respondent,
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.”16
A
We first address Alvarez’s argument that the district court
erred in finding that § 212(c) relief was not available to him
under St. Cyr because he lacked the requisite seven years
continuous domicile within the United States at the time of his
plea.
The district court’s finding was based solely upon its
14
Id. (“IIRIRA’s 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 clearly attaches a new disability, in respect to
transactions or considerations already past.” (citations and internal quotation
marks omitted)).
15
Id. at 323.
16
Id. at 326 (emphasis added).
7
conclusion that the language of St. Cyr extends eligibility for
§ 212(c) relief only to those aliens who would have been
immediately eligible for it “at the time of their plea.” The
district court reached this conclusion by seizing upon the words
“at the time of their plea” to the exclusion of the surrounding
text and in contravention of the policy motivating the Supreme
Court’s decision in St. Cyr. The Court in St. Cyr explicitly chose
to extend § 212(c) eligibility to aliens who would have been
eligible for such relief “at the time of their plea under the law
then in effect.”17 Under the law of our circuit in effect at the
time of Alvarez’s guilty plea, he was not required to have
accumulated seven years of unrelinquished domicile at the time of
his plea in order to qualify for relief under § 212(c). Rather, he
was permitted to continue accruing additional time toward his
period of domicile up to the point at which removal proceedings
were initiated against him.18
At the time of his guilty plea, Alvarez had accrued roughly
six years of continuous lawful domicile within the United States.
Given the fact that removal proceedings may not be initiated until
after judgment is entered, Alvarez likely anticipated that he would
be able to accrue an additional period of domicile before
proceedings began. Conditioning eligibility for § 212(c) relief
17
Id. (emphasis added).
18
See Pritchard-Ciriza, 978 F.2d at 224 n.9.
8
upon Alvarez’s accrual of seven years of lawful domicile at the
time of his plea would serve to thwart any reasonable expectation
he may have formed, in light of existing law, that he would be
allowed the opportunity to accrue an additional period of domicile
following the entry of his plea and before removal proceedings were
initiated.19 Thus, we find that St. Cyr does not require an alien
to have accrued seven years of lawful domicile at the time of his
or her plea in order to qualify for relief under § 212(c).
This conclusion finds support in a recently promulgated
regulation providing for a special motion allowing aliens who
pleaded guilty or nolo contendere to certain crimes before April 1,
1997, to seek § 212(c) relief. The regulation provides that an
alien seeking relief must establish that he or she:
19
Our court has recognized the importance placed by the Supreme Court upon
protecting the reliance interests of aliens who, prior to the IIRIRA, had waived
their trial rights and entered guilty pleas in exchange for an opportunity to
apply for § 212(c) relief. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 301
(5th Cir. 2002) (“The [St. Cyr] Court found that aliens, like St. Cyr, who
entered plea agreements with the government before IIRIRA became effective
‘almost certainly’ relied upon the likelihood of receiving a discretionary waiver
of deportation from the Attorney General – a possibility that the new IIRIRA
provision eliminated – when deciding to forgo their right to a trial.”). Other
circuits have likewise noted the importance that protecting reliance interests
played in the Court’s St. Cyr decision. See Ponnapula v. Ashcroft, 373 F.3d 480,
492 (3d. Cir. 2004) (“St. Cyr is principally concerned with the reasonable
reliance interests of aliens who enter into plea agreements as a class.”);
Rankine v. Reno, 319 F.3d 93, 102 (2d. Cir. 2003) (“[T]he issue of reliance has
played a central role in the Supreme Court’s and the circuit court’s reasoning
with respect to the retroactivity of the IIRIRA and AEDPA.”); Chambers v. Reno,
307 F.3d 284, 289 (4th Cir. 2002) (“In reaching [its] conclusion, the Court
focused on an alien’s reasonable reliance on the possibility of discretionary
relief under INA § 212(c) as one of the most important factors prompting him to
forego trial and enter a plea agreement.”); Domond v. INS, 244 F.3d 81, 86 (2d.
Cir. 2001) (finding that expectation interests of alien in St. Cyr were
“especially strong” when his guilty plea was entered before the effective date
of the AEDPA, “because an alien is likely to consider the immigration
consequences when deciding whether and how to plead”).
9
(1) Was a lawful permanent resident and is now subject
to a final order of deportation or removal;
(2) Agreed to plead guilty or nolo contendere to an
offense rendering the alien deportable or
removable, pursuant to a plea agreement made before
April 1, 1997;
(3) Had seven consecutive years of lawful
unrelinquished domicile in the United States prior
to the date of the final administrative order of
deportation or removal; and
(4) Is otherwise eligible to apply for section 212(c)
relief under the standards that were in effect at
the time the alien’s plea was made, regardless of
when the plea was entered by the court.20
The third requirement clearly provides that, in order to qualify
for § 212(c) relief, an alien must accrue seven years of lawful
domicile by the date of the alien’s final order of deportation. In
its response to comments received on this provision during the
notice and comment period, the Department of Justice explicitly
rejected the recommendation that the regulation be amended to
require that an alien have seven consecutive years of lawful
domicile “at the time the plea was entered” in order to qualify for
§ 212(c) relief under the special motion.21 The Department
buttressed this refusal by observing that the “Board [of
Immigration Appeals] has long held that an alien’s lawful domicile
terminates upon the entry of the final administrative order of
20
8 C.F.R. § 1003.44(b)(1)-(4) (2004) (emphasis added).
21
69 Fed. Reg. 57,826, 57,831 (Sept. 28, 2004).
10
deportation.”22 Although the regulation applies specifically to
special motions for § 212(c) relief, we note that it constitutes
relevant persuasive authority in this habeas appeal.23
Because the law of our circuit at the time Alvarez entered his
guilty plea allowed aliens to accrue additional time toward their
total period of continuous unrelinquished domicile following their
plea of guilty to a removable offense, we find that Alvarez need
not have accrued seven years of lawful domicile at the time of his
plea in order to be eligible for § 212(c) relief under St. Cyr.
The district court erred in holding otherwise.
B
We next address the Government’s argument that the date that
judgment of conviction is entered determines whether application of
the IIRIRA bar to an alien’s § 212(c) claim for relief is
impermissible under St. Cyr. Under this interpretation of St. Cyr,
an alien who, like Alvarez, pleaded guilty to a removable offense
before the effective date of the IIRIRA, but had the misfortune of
having his or her date of final conviction delayed until after the
effective date, would be precluded from applying for § 212(c)
22
Id. (citing In re Cerna, 20 I&N Dec. 399 (BIA 1991)).
23
We need not conduct a Chevron analysis here as our holding in this case
rests upon our interpretation of St. Cyr, and does not require a finding
regarding the appropriate level of deference to be afforded the regulation. See
Edelman v. Lynchburg College, 535 U.S. 106, 114 n.8 (2002) (noting that there is
no need to resolve deference issues when the need for deference is obviated by
the court’s independent decision to adopt the rule set forth in the regulation).
11
relief.
In support of this interpretation, the Government points to
the Supreme Court’s observation in St. Cyr that one of the
important consequences of an alien’s guilty plea is the fact that
he or she becomes subject to deportation. 24 Noting that an alien
cannot become subject to deportation until after conviction and
entry of final judgment, the Government reasons that the Court’s
observation indicates its intent to place the date that judgment of
conviction is entered at the center of its retroactivity analysis
in St. Cyr.
This interpretation ignores both the language of St. Cyr and
the policy underlying it. In St. Cyr, the Court repeatedly
emphasized the date of an alien’s guilty plea as the point at which
the alien relies to his detriment upon the availability of § 212(c)
relief.25 Significantly, the Court observed that “[p]lea agreements
involve a quid pro quo between a criminal defendant and the
government” in which the defendant waives several of his
constitutional rights in “exchange for some perceived benefit.”26
The Court found that, prior to the AEDPA and IIRIRA, aliens “almost
certainly” pleaded guilty to removable crimes in reliance upon the
24
533 U.S. at 314-15 (“Two important legal consequences ensued from
respondent’s entry of a guilty plea in March 1996: (1) He became subject to
deportation, and (2) he became eligible for a discretionary waiver of that
deportation under the prevailing interpretation of § 212(c).”).
25
Id. at 321-24.
26
Id. at 321-22.
12
likelihood of being granted § 212(c) relief, rendering the
elimination of § 212(c) relief by the IIRIRA an act possessed of
“obvious and severe retroactive effect.”27 The Court concluded by
holding that § 212(c) relief must remain 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.”28 The focus of these words upon
the date of an alien’s plea as the point at which an alien’s
reliance interest arises is unmistakable.
The Government also relies upon the decision of the Third
Circuit in Perez v. Elwood.29 In Perez, the Third Circuit held that
an alien was not eligible to apply for § 212(c) relief when,
following a jury trial, he was not convicted until almost three
months after the effective date of the IIRIRA. Perez is
distinguishable from the present case on two important grounds.
First, Perez dealt with an alien who had refused to enter a guilty
plea and was subsequently tried by a jury. Second, the alien in
Perez argued that he was entitled to § 212(c) relief on grounds
that the criminal conduct underlying his conviction occurred before
the waiver’s repeal.
Unlike Alvarez, the alien in Perez did not waive important
27
Id. at 325.
28
Id. at 326 (emphasis added).
29
294 F.3d 552 (3d. Cir. 2002).
13
constitutional rights in order to secure an opportunity to apply of
for § 212(c) relief. Rather, the alien in Perez opted to go to
trial, and subsequently advanced the tenuous (and ultimately
unsuccessful) argument that his eligibility to apply for § 212(c)
relief under St. Cyr was properly dictated by the date on which his
criminal conduct occurred. A number of courts have rejected this
argument, finding that those aliens who opted to go to trial prior
to § 212(c)’s repeal lacked reliance upon § 212(c) relief,
precluding a finding of impermissible retroactivity.30 Alvarez, on
the other hand, affirmatively waived his constitutional trial
rights in reliance upon an opportunity to seek § 212(c) relief.
Thus, unlike the alien in Perez, Alvarez acquired an important
reliance interest entitled to protection as of the date that it
came into being – the date of his plea.
This conclusion finds support not only in the language of St.
Cyr, but in the regulations recently promulgated by the Department
of Justice as well. As we noted, the second requirement for an
30
See Rankine, 319 F.3d at 102 (“Unlike aliens who pled guilty so as to
ensure their eligibility for relief, the petitioners here and others like them
aimed to eliminate the possibility of deportation altogether by being found not
guilty of the crimes of which they were accused.”); Armendariz-Montoya v.
Sonchik, 291 F.3d 1116, 1121 (9th Cir. 2002) (“Unlike aliens who pleaded guilty,
aliens who elected a jury trial cannot plausibly claim that they would have acted
any differently if they had known about [the AEDPA].”); LaGuerre v. Reno, 164
F.3d 1035, 1041 (7th Cir. 1998) (“It would border on the absurd to argue
that . . . aliens might have decided not to commit drug crimes, or might have
resisted conviction more vigorously, had they known that if they were not only
imprisoned but also, when their prison term ended, ordered deported, they could
not ask for a discretionary waiver of deportation.”); but see Ponnapula, 373 F.3d
at 494 (finding that alien who rejected a plea agreement and went to trial did
so in reliance upon the availability of § 212(c) relief).
14
alien to be eligible for § 212(c) relief via a special motion is
that the alien “[a]greed to plead guilty or nolo contendere to an
offense rendering the alien deportable or removable, pursuant to a
plea agreement made before April 1, 1997.”31 This regulation says
nothing about the “date of conviction,” requiring only that the
alien enter a plea prior to the effective date of the IIRIRA in
order to qualify for § 212(c) relief. A second newly promulgated
regulation provides that “[a]n alien whose convictions for one or
more aggravated felonies were entered pursuant to plea agreements
made on or after November 29, 1990, but prior to April 24, 1996, is
ineligible for section 212(c) relief only if he or she has served
a term of imprisonment of five years or more for [specific]
aggravated . . . felonies.”32 In response to comments on these
regulations, the Department of Justice found that, “consistent with
the Supreme Court’s decision in St. Cyr, the key in deciding the
extent to which an alien is eligible for section 212(c) relief
rests on the available relief at the time the alien and the
prosecutor made the plea agreement.”33
We find that the date of a plea of guilty, and not the date
that judgment of conviction is ultimately entered, is determinative
of whether the retroactive application of the IIRIRA bar to an
31
8 C.F.R. § 1003.44(b)(2).
32
8 C.F.R. § 1212.3(f)(4)(i) (2004) (emphasis added).
33
69 Fed. Reg. at 57,829 (emphasis added).
15
alien’s claim for § 212(c) relief is impermissible under St. Cyr.
Accordingly, because he pleaded guilty before the effective date of
the IIRIRA, Alvarez is not precluded from seeking § 212(c) relief.
III
In summary, we hold that, when an alien enters into a plea
bargain, the retroactivity analysis set forth in St. Cyr is
triggered by the date of the guilty plea and not the date that
judgment of conviction is entered. In addition, we hold that an
alien need not have accrued seven years of continuous,
unrelinquished domicile at the time of his plea in order to be
eligible for § 212(c) relief under St. Cyr. Here, Alvarez pleaded
guilty to the offense forming the basis for his removal proceedings
before § 212(c) was repealed by the IIRIRA. In addition, he
accrued over seven years of unrelinquished domicile prior to the
initiation of his removal proceeding. Accordingly, we reverse the
district court’s order denying Alvarez habeas relief, and remand to
the district court with instructions to grant Alvarez’s habeas
petition.
REVERSED and REMANDED with instructions.
16