Salazar-Regino v. Trominski

United States Court of Appeals

Fifth Circuit

F I L E D

In the June 30, 2005

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

_______________

m 03-41492

_______________

LAURA ESTELA SALAZAR-REGINO,

Petitioner-Appellant,

VERSUS

E.M. TROMINSKI,

DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE;

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondents-Appellees.

***************

TEODULO CANTU-DELGADILLO,

Petitioner-Appellant,

VERSUS

E.M. TROMINSKI,

DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE;

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondents-Appellees.

***************

DANIEL CARRIZALES-PEREZ,

Petitioner-Appellant,

VERSUS

AARON CABRERA,

ACTING DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, ACTING DIRECTOR HLG/DO;

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondents-Appellees.

***************

MANUEL SANDOVAL-HERRERA,

Petitioner-Appellant,

AARON CABRERA,

ACTING DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE;

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondents-Appellees.

***************

2

RAUL HERNANDEZ PANTOJA,

Petitioner-Appellant,

VERSUS

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES;

CHARLES ARENDALE,

ACTING DIRECTOR;

Respondents-Appellees.

***************

JOSE MARTIN OVIEDO-SIFUENTES,

Petitioner-Appellant,

VERSUS

CHARLES ARENDALE,

ACTING DIRECTOR;

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondents-Appellees.

***************

3

CESAR LUCIO,

Petitioner-Appellant,

CHARLES ARENDALE,

ACTING DIRECTOR;

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondents-Appellees.

***************

PRAXEDIS RODRIGUEZ,

Petitioner-Appellant,

VERSUS

AARON CABRERA;

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondents-Appellees.

***************

NOHEMI RANGEL-RIVERA,

Petitioner-Appellant,

VERSUS

AARON CABRERA;

ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondents-Appellees.

4

______________________________

Appeal from the United States District Court

for the Southern District of Texas

______________________________

Before JOLLY, SMITH, and DEMOSS, examine the facts of each of their cases in turn.

Circuit Judges.

JERRY E. SMITH, Circuit Judge: A.

Salazar-Regino pleaded guilty on January 7,

The petitioners are lawful permanent resi- 1997, in Texas state court of third-degree-

dent aliens who pleaded guilty to marihuana felony possession of a controlled substance

possession offenses and received deferred (intentional and knowing possession of 5 to 50

adjudication in state court. Based on their pounds of marihuana). It was her first of-

guilty pleas, the government successfully fense, and she received deferred adjudication

sought their removal from the United States. of guilty and was placed on probation for 10

Although at the time of their guilty pleas the years. On August 10, 1998, the Immigration

Board of Immigration Appeals (“BIA”) inter- and Naturalization Service (“INS”)1 com-

preted the relevant immigration statutes as not menced removal proceedings against her on

requiring removal for this type of deferred the grounds that she was (1) an alien who has

adjudication (or at least as allowing for discre- been “convicted” of a controlled substance

tionary relief from removal), the petitioners o ffe n s e p u r s u a n t t o 8 U . S . C .

were found to be removable and ineligible for § 1227(a)(2)(B)(i),2 and (2) an alien who has

discretionary relief based on precedent that been “convicted” of an “aggravated felony”

developed after entry of their pleas. They

filed for habeas corpus relief, which was de-

nied by the district court. Finding no error, we 1

On March 1, 2003, the INS ceased to exist as

affirm. an agency within the Department of Justice, and its

enforcement functions were transferred to the

I. Department of Homeland Security; the entity is

Laura Estela Salazar-Regino and Nohemi now known as the Bureau of Immigration and Cus-

Rangel-Rivera are lawful permanent residents toms Enforcement. Because the relevant events

who filed habeas petitions in federal district began before the reorganization, we continue to

court regarding findings that they were remov- refer to the INS.

able and ineligible for discretionary relief from 2

removal; the habeas petitions were consoli- Title 8 U.S.C. § 1227(a)(2)(B) provides that

dated with seven other similar petitions. The “[a]ny alien who at any time after admission has

been convicted of a violation of . . . any law or

district court denied the petitions, and all the

regulation of a State [or] the United States relating

petritioners appealed. Salazar-Regino and

to a controlled substance . . . other than a single of-

Rangel-Rivera’s cases were selected as the fense involving possession for one’s own use of 30

lead cases for briefing and argument. We grams or less of marijuana, is deportable.”

5

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), more, the BIA concluded that Salazar-Regino

namely a “drug trafficking crime” as defined by was alternatively removable because her state

8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. felony drug-possession crime constituted an

§ 924(c). “aggravated felony” under United States v.

Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997)

Salazar-Regino denied deportability and (which held that a state felony drug possession

moved to terminate the proceedings, contend- crime constitutes an aggravated felony for fed-

ing she was not “convicted” for immigration eral sentencing purposes), and United States v.

purposes under the state first-offender excep- Hernandez-Avalos, 251 F.3d 505, 508-10 (5th

tion created in Matter of Manrique, 21 I. & Cir. 2001) (which extended the definition to

N. Dec. 58 (BIA 1995), which held that a first- immigration proceedings and explicitly reject-

time state drug offense of simple possession ed Matter of L-G-). Salazar-Regino filed a ha-

should not be considered a conviction for beas petition in federal district court, challeng-

immigration purposes if the alien would have ing the BIA’s conclusion. The denial of that

hypothetically been eligible for treatment under petition is the subject of the instant appeal.

the Federal First Offender Act (“FFOA”)3 had

he been prosecuted under federal narcotics B.

laws. The immigration judge (“IJ”) agreed Rangel-Rivera pleaded guilty on March 9,

that Salazar-Regino’s deferred adjudication 1999, in Texas state court to felony possession

was not a “conviction” and concluded that her of marihuana (between 50 and 2000 pounds)

crime of drug possession would not be punish- and was granted deferred adjudication. The

able as a felony under federal law, and thereby INS placed her in removal proceedings and

was not an aggravated felony under Matter of charged her with being deportable as an alien

L-G-, 20 I. & N. Dec. 905 (BIA 1994). convicted of a controlled substances offense.

She conceded that she was deportable as

The INS appealed the termination of the re- charged5 and applied for discretionary relief

moval proceedings, and the BIA reversed, pursuant to 8 U.S.C. § 1229b.6 On May 11,

concluding that Salazar-Regino was deport- 1999, the IJ found that she deserved relief as a

able on either ground. The BIA found that the matter of discretion.

deferred adjudication did constitute a “convic-

tion” for immigration purposes under the stat-

utory definition of conviction enacted by Con- 5

Rangel-Rivera pleaded guilty after Rold-

gress in 1996, after Manrique but before Sal- an was issued, so she is foreclosed from arguing

azar-Regino’s guilty plea.4 The BIA pointed that that the decision was impermissibly applied to

to its conclusion in Matter of Roldan, 22 I. & her retroactively in defining the term “conviction”

N. Dec. 512 (BIA 1999), that the 1996 statu- for immigration purposes.

tory definition superseded Manrique. Further-

6

Title 8 U.S.C. § 1229b(a)(1) states that can-

cellation of removal is available at the discretion of

3 the Attorney General if the alien “(1) has been an

18 U.S.C. § 3607(a), (b).

alien lawfully admitted for permanent residence for

4

See 8 U.S.C. § 1101(a)(48) (defining a con- not less than 5 years, (2) has resided in the United

viction as, inter alia and with no stated excep- States continuously for 7 years after having been

tions,, a “plea of guilty” and some form of “re- admitted in any status, and (3) has not been con-

straint on liberty”). victed of any aggravated felony.”

6

The INS appealed, and the BIA reversed, tion for the court is whether the agency’s

concluding that based on intervening precedent answer is based on a permissible construc-

since the time of the prior decision, Rangel-Ri- tion of the statute.

vera’s crime of felony drug possession was an

aggravated felony under Matter of Yanez- Moosa v. INS, 171 F.3d 994, 1005 (5th Cir.

Garcia, 23 I. & N. Dec. 390 (BIA 2002), 1999) (citing Chevron, 467 U.S. at 842-43).

which adopted the construction set forth in

Hernandez-Avalos. Because the BIA found III.

that Rangel-Rivera had committed an aggra- The INS argues that the district court erred

vated felony, it decided that the IJ had abused when it held that it (the district court) had jur-

his discretion by granting discretionary relief. isdiction over Salazar-Regino’s petition. The

Rangel-Rivera filed a habeas petition in federal essence of the INS’s argument is that we, as

district court challenging the BIA’s conclu- the court of appeals, had jurisdiction to review

sion. Its denial is the subject of the instant his appeal from the BIA’s decision directly,

appeal. and his habeas petition should therefore have

been dismissed because he failed to exhaust his

II. other available remedies before filing that

We review questions of law as to jurisdic- petition.7

tion and merits de novo. See Requena-Rodri-

guez v. Pasquarell, 190 F.3d 299, 302 (5th A.

Cir. 1999). We review the INS’s construc- In resolving this jurisdictional question, the

tions of the law it administers deferentially, un- first issue to address is whether we would have

der the test established by Chevron, U.S.A., had jurisdiction to review Salazar-Regino’s

Inc. v. Natural Resources Defense Council, claims on direct appeal. As a threshold matter,

Inc., 467 U.S. 837 (1984). See INS v. Aguir- 8 U.S.C. § 1252(a)SSthe statute governing

re-Aguirre, 526 U.S. 415, 424 (1999). review of final orders of removalSSstates that

review of such orders shall take place in the

On reviewing an Agency’s construction of courts of appeals by means of petitions for

a statute it administers, we must perform direct review. Section 1252(a)(2)(C), how-

the well-known two-step inquiry: First, al- ever, eliminates jurisdiction to review final or-

ways, is the question whether Congress has ders of removal involving aliens who are de-

directly spoken to the precise question at portable for conviction of certain crimes, in-

issue. If the intent of Congress is clear, cluding controlled substances offenses and ag-

that is the end of the matter; for the court, gravated felonies.8

as well as the agency, must give effect to

the unambiguously expressed intent of

7

Congress. If, however, the court deter- The INS does not aver that the district court

mines Congress has not directly addressed lacked habeas jurisdiction over Rangel-Rivera’s

the precise question at issue, the court does petition, because she conceded that she was re-

not simply impose its own construction on movable and only challenges her ineligibility for

the statute, as would be necessary in the ab- discretionary cancellation of removal.

sence of an administrative interpretation. 8

Section 1252(a)(2)(C) reads as follows:

Rather, if the statute is silent or ambiguous

with respect to the specific issue, the ques- (continued...)

7

Despite this jurisdictional bar, it is well es- what we have previously considered to be part

tablished that we retain jurisdiction to deter- of the “jurisdictional inquiry;” she challenges

mine our own jurisdiction.9 Specifically, whether she was “convicted” for the purposes

of removal, and she brings constitutional

[w]hen confronted with a petition for re- challenges (retroactivity, due process, and

view from a criminal alien, a court of ap- equal protection) to whether the conditions

peals must make three specific inquiries that bar jurisdiction (whether her deferred

before dismissing the petition as barred § adjudication was a “conviction” and whether

1252(a)(2)(C): (1) whether specific condi- her offense was an “aggravated felony”)

tions act to bar jurisdiction over the petition apply.10

to review; (2) whether the conditions that

bar jurisdictionSSfor example as in this Finally, Salazar-Regino notes that a couple

case, deportation for an aggravated fel- of her claims could not have been reviewed by

onySShave been ‘constitutionally applied;’ us directlySSnamely, her challenge to her in-

and (3) if the jurisdictional bar applies, eligibility for discretionary relief and her inter-

whether the remaining quantum of review national law argument. She is correct, for

satisfies the Constitution. these questions do not address the jurisdic-

tional inquiry as we framed it in Garcia, id.

Garcia, 234 F.3d at 259. The issues raised by

Salazar-Regino appear to fall squarely into The issues that we do have jurisdiction to

consider on direct review, however, are

threshold issues that must be considered be-

8

(...continued) fore reaching Salazar-Regino’s ineligibility for

Notwithstanding any other provision of law discretionary relief. As we explained in Lee,

(statutory or nonstatutory), including section 2005 U.S. App. LEXIS 9946, at *19, the

2241 of Title 28, or any other habeas corpus proper procedure in such a situation is first to

provision, and sections 1361 and 1651 of such file a petition for direct review. If we then de-

title, and except as provided in subparagraph termine that the jurisdiction-stripping statute,

(D), no court shall have jurisdiction to review

any final order of removal against an alien who

is removable by reason of having committed a

10

criminal offense covered in section 1181(a)(2) Salazar-Regino claims this court does not

or 1227(a)(2)(A)(iii), (B), (C), or (D) of this have jurisdiction to entertain constitutional chal-

title, or any offense covered by section 1227(a)- lenges where § 1252(a)(2)(c) applies, but the cases

(2)(A)(ii) of this title for which both predicate she cites for this propositionSSCalcano-Martinez

offenses are, without regard to their date of v. INS, 533 U.S. 348 (2001), and Flores-Garza,

commission, otherwise covered by section 328 F.3d at 802-03SSare inapposite. The Court in

1227(a)(2)(A)(i) of this title.” Calcano-Martinez declined to consider this issue,

because it was not relevant to the disposition of the

8 U.S.C. § 1252(a)(2)(C). petitions under review. See Calcano-Martinez,

533 U.S. at 350 n.2. Similarly, Flores-Garza did

9

See Lee v. Ashcroft, 2005 U.S. App. LEXIS not decide the issue, because there we found that it

9946, at *9-*10 (5th Cir. May 31, 2005); see also was undisputed that the alien was removable by

Flores-Garza v. INS, 328 F.3d 797, 802 (5th Cir. another reason that independently triggered the

2003); Garcia v. Reno, 234 F.3d 257, 259 (5th jurisdiction-stripping provision. See Flores-Garza,

Cir. 2000). 328 F.3d at 802.

8

§ 1252(a)(2)(C), does not apply (because, for have held that the availability of an alternative

example, we decide that the offense was not forum of review does not conclusively deter-

an aggravated felony), then the alien is not mine, in the absence of plain Congressional

removable, and our inquiry ends. See id. If, intent, that habeas jurisdiction is no longer

on the other hand, we determine that the alien available.13 Other circuits have ruled the other

is removable and the jurisdiction-stripping way, holding that there is no habeas jurisdic-

statute applies, we dismiss the case, and the tion to review an alien’s removal order where

alien, lacking another avenue of review, can he failed to exhaust available judicial

proceed in habeas. See id. In sum, we agree remedies.14

with the government’s contention that we had

jurisdiction to entertain the threshold issues in Although we had not ruled on this precise

Salazar-Regino’s appeal on direct review. jurisdictional issue at the time the district court

considered Salazar-Regino’s habeas petition,

B. we have since adopted the position that the

Because there was jurisdiction for us to exhaustion requirement still applies post-St.

hear Salazar-Regino’s appeal on direct review, Cyr. See Lee v. Gonzales, 2005 U.S. App.

the government urges us to dismiss her habeas LEXIS 9946 (5th Cir. May 31, 2005). Be-

petition for failure to exhaust available judicial

remedies.11 The district court correctly noted

that at the time when Salazar-Regino filed her 12

(...continued)

habeas petition in the district court, there was open whether the existence of another available ju-

debate among the circuits as to whether the dicial forum to adjudicate the merits of an alien’s

requirement of exhaustion of available judicial claim overrides the absence of a clear statement by

remedies still applies in the wake of INS v. St. Congress that it intended to strip the district courts

Cyr, 533 U.S. 289 (2001). 12 Several courts of their habeas jurisdiction.”)

13

See Liu v. INS, 293 F.3d 36, 40 (2d Cir.

2002) (stating that the forum-availability argument

11

See Santos v. Reno, 228 F.3d 591, 597 (5th merely reinforced but did not determine the conclu-

Cir. 2000) (holding that habeas is unavailable sion that Congress had not plainly repealed habeas

where the court of appeals could have heard the review); see also Chmakov v. Blackman, 266 F.3d

claims presented through another avenue of relief); 210, 215 (3d Cir. 2001) (concluding that although

Rivera-Sanchez v. Reno, 198 F.3d 545, 547 (5th the legal questions could have been considered on

Cir. 1999) (stating that “habeas jurisdiction exists direct review, the aliens still could bring a habeas

only where ‘challenges [to deportation orders] petition).

cannot be considered on direct review by the court

14

of appeals’”); Requena-Rodriguez v. Pasquerell, Lopez v. Heinauer, 332 F.3d 507, 510-11

190 F.3d 299, 305 (5th Cir. 1999) (stating that (8th Cir. 2003) (“Although habeas jurisdiction re-

habeas jurisdiction exists to review “statutory and mains available to deportees who raise questions of

constitutional challenges if those challenges cannot law and who have no other available judicial forum

be considered on direct review”). [citing St. Cyr], the statute here provides an ade-

quate judicial forum, permitting the noncriminal

12

Seale v. INS, 323 F.3d 150, 54 (1st Cir. deportee to file a petition for review in the appro-

2003) (concluding that St. Cyr has some ambigu- priate court of appeals . . . . Lopez filed the wrong

ous language such that “[t]he question remains action in the wrong federal court.”); see also Baeta

(continued...) v. Sonchik, 273 F.3d 1261, 1264 (9th Cir. 2001).

9

cause we have determined that we could have 1037, 1046 (9th Cir. 2001).16

reviewed Salazar-Regino’s claims on direct

review, and she failed to pursue that avenue of The first requirement is met here, because

relief before filing her habeas petition in the we would have had jurisdiction to review the

district court, dismissal of her habeas petition BIA’s disposition of Salazar-Regino’s claims

is appropriate. on direct review, and she filed her habeas

petition in the district court within the thirty-

Despite this, not all is lost for Salazar-Re- day deadline for filing for direct review.17

gino, for we decline to dismiss for lack of jur- Next, we have decided that the district court

isdiction in this case and may consider the lacked habeas jurisdiction because Salazar-

merits of the issues raised by her habeas peti- Regino failed to exhaust her available judicial

tion, because transfer to this court is appropri- remedies. Finally, it would be in the interest of

ate in the interest of justice under 28 U.S.C. justice to allow this relief, given that the

§ 1631,15 which provides: caselaw regarding this procedure was admit-

tedly murky post-St. Cyr, and the purpose of

Whether a civil action is filed in a court as the transfer statute “is to aid litigants who

defined in section of 610 of this title or an were confused about the proper forum for

appeal, including a petition for review of review.” Baeta, 273 F.3d at 1264-65 (internal

administrative action, is noticed for or filed citations omitted).

with such court and the court finds that

there is a want of jurisdiction, the court As a final complication, we must deal with

shall, if it is in the interest of justice, trans- the claims that Salazar-Regino could not have

fer such action or appeal to any other such brought on direct review, namely, her chal-

court in which the action or appeal shall lenge to her ineligibility for discretionary relief

proceed as if it had been filed in or noticed

for the court to which it is transferred on 16

the date upon which it was actually filed in Technically, the text of § 1631 authorizes

or noticed for the court from which it is only the court in which the action was filed (which

would be the district court) to effect a transfer.

transferred.

This places us in an odd procedural posture, be-

cause it means that if we find that the district court

28 U.S.C. § 1631. In the immigration context, erred in not transferring the case to us, we would

that statute authorizes us to transfer these have to remand with direction to transfer back to us

cases to this court if “(1) we would have been so that we could consider what is already before

able to exercise jurisdiction on the date that us. See Lopez, 332 F.3d at 511. We agree with

they were filed in the district court; (2) the the Eighth and Ninth Circuits that we should

district court lacked jurisdiction over the cas- dispense with that formality in the interest of

es; and (3) the transfer is in the interests of judicial economy, and consider the case properly

justice.” Castro-Cortez v. INS, 239 F.3d transferred to us where it is otherwise appropriate

under § 1631. See id.; see also In re McCauley,

814 F.2d 1350, 1352 (9th Cir. 1987).

17

See 8 U.S.C. § 1252(b)(1) (stating that a

petition for direct review must be filed no later than

15

The INS acknowledges that transfer is ap- 30 days after the date of the final order of re-

propriate under § 1631. moval).

10

and her international law claim. The district existed before 1996. In this context, the BIA

court pointed to the existence of these claims decided Matter of Manrique, 21 I. & N. Dec.

to justify retaining jurisdiction over all of 58 (BIA 1995), which held that aliens who re-

Salazar-Regino’s claims. ceived deferred adjudication for first-time drug

offenses in state court who would be eligible

The Ninth Circuit has taken a different ap- for discretionary deferred adjudication under

proachSSit splits the claims into those that the FFOA19SShad they been prosecuted under

could have been brought on direct appeal and federal drug lawsSSwould not be considered to

those that could not, and treats them differ- have a “conviction” for immigration removal

ently.18 This approach is preferable, because it purposes. See id. at 64. That decision was

comports with the procedure recommended in based on a policy consideration that the appro-

Lee, 2005 U.S. App. LEXIS 9946, at priate focus should be on the alien’s conduct,

*19SSthat an alien first present his threshold not the breadth of the state rehabilitative

jurisdictional issues on direct appeal, and then statute; the BIA decided that leniency should

if unsuccessful pursue the remainder of his be extended to aliens to provide them the same

claims in habeasSSand because it also prevents treatment they would have received under

a litigant from manufacturing habeas jurisdic- federal law if they had been subject to federal

tion by bootstrapping, onto his habeas petition, rather than state prosecution. See id. at 63-64.

frivolous issues that could not be reviewed on

direct appeal. In 1996, Congress drafted a concrete defi-

nition of “conviction” for immigration pur-

Thus, pursuant to § 1631, we transfer all of poses:

Salazar-Regino’s claims (other than her chal-

lenge to her ineligibility for discretionary relief The term “conviction” means, with respect

and her international law claim) to this court to an alien, a formal judgment of guilt of

for consideration on the merits. Because the alien entered by a court or, if adjudica-

habeas jurisdiction was proper for the remain- tion of guilt has been withheld, whereSS

ing claims, we do not transfer those, and we

consider them on the merits as properly ap- (i) a judge or jury has found the alien

pealed to us after being denied by the district guilty or the alien has entered a plea of

court. guilty or nolo contendere or has admit-

ted sufficient facts to warrant a finding

IV. of guilt, and

Salazar-Regino challenges the BIA’s deci-

sion that her Texas deferred adjudication con- (ii) the judge has ordered some form of

stitutes a “conviction” for removal purposes. punishment, penalty, or restraint on the

Importantly, no definition of “conviction” alien’s liberty to be imposed.

19

Under the FFOA, a successfully completed

18

Cf. Baeta, 273 F.3d at 1264 (“Under the deferred adjudication could not be considered “a

circumstances presented, transfer of the portion of conviction for the purpose of a disqualification or

the habeas petition [that could have been raised on a disability imposed by law upon conviction of a

direct review] to this Court is appropriate.” (em- crime, or for any other purpose.” 18 U.S.C.

phasis added)). § 3607(b).

11

8 U.S.C. § 1101(a)(48). In Matter of Roldan, Chevron deference, we cannot say that the

22 I. & N. Dec. 512, 518 (BIA 1999), the BIA BIA’s interpretation of the statute it is charged

determined that this new definition abrogated with administering was an impermissible con-

Manrique, noting that Manrique and the deci- struction in light of our binding precedent in

sions it relied on were decided “in the absence Moosa, in which we found this construction to

of any indication from Congress as to whether be dictated by the text of the statute. See id.

a state rehabilitative action should be given any at 1005.

effect in immigration proceedings.” Roldan,

22 I. & N. Dec. at 526. The BIA observed V.

that the plain language of § 1101(a)(48) dic- Salazar-Regino and Rangel-Rivera claim

tated that that the BIA erroneously applied our construc-

tion of “aggravated felony” expressed in Unit-

a state action that purports to abrogate ed States v. Hernandez-Avalos, 251 F.3d 505

what would otherwise be considered a (5th Cir. 2001). Congress has defined “aggra-

conviction, as the result of a state rehabili- vated felony” for immigration purposes to

tative statute, rather than as a result of a mean, inter alia, “a drug trafficking crime (as

procedure that vacates a conviction on the defined in section 942(c) of Title 18).”

merits or on grounds relating to a statutory 8 U.S.C. § 1101(a)(43)(B). Section 924(c) of

or constitutional violation, has no effect in Title 18, in turn, defines “drug trafficking

determining whether an alien has been crime” to include “any felony punishable under

convicted for immigration purposes. the Controlled Substances Act (21 U.S.C. §

810 et seq.) . . .” 18 U.S.C. § 924(c)(2);

Id. at 527. The BIA assumed that Congress Hernandez-Avalos, 251 F.3d at 507.

was aware of its administrative exception for

deportability that was created in Manrique but As of 1995, the BIA used a “hypothetical

noted that Congress had failed to provide any federal felony” approach in defining aggravat-

exceptions that would allow the Manrique ed felonies, which included any state offense

exception to survive. See id. that would be “punishable as a felony” under

the Controlled Substances Act if it were a fed-

Mainly by citing and crediting the argu- eral offense. See id. at 508-09; Matter of L-G-

ments made in the Roldan dissents, Salazar- , 21 I. & N. Dec. 89 (BIA 1995). Based on

Regino argues that Roldan incorrectly con- this reading, the BIA construed state felony

cluded that § 1101(a)(48) overruled Man- drug possession as not coming within the

rique. As the district court correctly found, definition of aggravated felony for immigration

however, that question is foreclosed by Moosa

v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999),

20

which held that “[c]onsidering only the text of (...continued)

§ 322(a), a Texas deferred adjudication, see that a judge may enter a deferred adjudication “af-

supra note 1, is a ‘conviction.’”.20 Exercising ter receiving a plea of guilty or plea of nolo conten-

dere, hearing the evidence, and finding that it sub-

stantiates the defendant’s guilt.” Moosa, 171 F.3d

at 1005 (citing TEX.CODE.CRIM. P. art. 42.12 §

20

In Moosa, we found that the first prong of 5(a)). Further, the court found the second prong

§ 1101(a)(48) was met because Texas law states was met because probation constitutes a punish-

(continued...) ment and a restraint on liberty. See id. at 1006.

12

purposes. See Hernandez-Avalos, 251 F.3d at

508-10. Meanwhile, we used a different VI.

interpretation in federal sentencing cases, Salazar-Regino and Rangel-Rivera claim

construing the definition of aggravated felony that their due process rights were violated by

to include offenses that are (1) punishable the retroactive application of Roldan and Her-

under the Controlled Substances Act (whether nandez-Avalos to them, because they pleaded

as a felony or not) and (2) a felony in the law guilty before those rulings were made. As

of the convicting jurisdiction. This led to correctly noted by the district court, the retro-

divergent results. See id. at 508 (citing United active application of judicial decisions is a

States v. Hinojosa-Lopez, 130 F.3d 691, 694 longstanding maxim. “The general principle

(5th Cir. 1997)). that statutes operate prospectively and judicial

decisions apply retroactively had been fol-

In Hernandez-Avalos, id., we resolved this lowed by the common law and the Supreme

discrepancy by extending to the immigration Court’s decisions ‘for near a thousand years.’”

context the definition of “aggravated felony” Hulin v. Fibreboard Corp., 178 F.3d 316, 329

as established by Hinojosa-Lopez. We decided (5th Cir. 1999) (quoting Kuhn v. Fairmont

that the plain language of the statutes “indi- Coal Co., 215 U.S. 349, 372 (1910) (Holmes,

cate[s] that Congress made a deliberate policy J., dissenting)).

decision to include as an ‘aggravated felony’ a

drug crime that is a felony under state law but This reasoning originates from the notion

only as a misdemeanor under the [Controlled that “[w]hen [the courts] appl[y] a rule of fed-

Substances Act], and that a lack of a uniform eral law to the parties before it, that rule is the

substantive test for determining which drug controlling interpretation of federal law and

offenses qualify as ‘aggravated felonies’ is the must be given full retroactive effect in all cases

consequence of a deliberate policy choice by still open on direct review and as to all events,

Congress that the BIA and the courts cannot regardless of whether such events predate or

disregard” (internal citations omitted). postdate [the court’s] announcement of the

rule.” Harper v. Va. Dep’t of Taxation, 509

The BIA directly applied Hernandez-Aval- U.S. 86, 97 (1993). The logic is that judges

os in Salazar-Regino’s case, and to the extent “say what the law is,” rather than “what the

that her argument attacks that case as wrongly law shall be” as legislatures do; overruling a

decided, it is foreclosed by our obligation to former judicial decision is not a new declara-

follow the prior panel opinion. Similarly, we tion of law, but rather a new decision that

cannot say that the BIA was incorrect to apply corrects legal error. See id. at 107 (Scalia, J.,

Matter of Yanez-Garcia, 23 I. & N. Dec. 390 concurring) (citing Marbury v. Madison, 5

(BIA 2002) (adopting the Hernandez-Avalos U.S. 137 (1803)).21

rule) to Rangel-Rivera, because we are bound

by Hernandez-Avalos, which tells us that the A.

plain language of the statute dictates the inter- First, Salazar-Regino argues that principles

pretation of “aggravated felony” made by the

BIA in Yanez-Garcia. Accordingly, we cannot

say that the BIA, in light of Chevron defer- 21

For a comprehensive discussion of the devel-

ence, made an unreasonable interpretation of opment of the retroactivity doctrine in the Supreme

the statute that it is charged to administer. Court, see Hulin, 178 F.3d at 329-33.

13

of administrative rather than judicial retroac- plea, but the fact is that § 1101(a)(48), de-

tivity should be applied, citing Microcomputer fining “conviction,” also predated her plea, and

Tech. Inst. v. Riley, 139 F.3d 1044, 1050 (5th thus Roldan did not constitute a sua sponte

Cir. 1998).22 As we stated in Riley, change in policy that we review for arbitrari-

ness and capriciousness, but rather a determi-

When an agency changes its policy pro- nation that the statute that it was charged with

spectively, a reviewing court need only de- administering abrogated its prior policy. Rold-

termine the reasonableness of the new an was not establishing a new rule or standard

interpretation in terms of Chevron. But of conduct, but was merely determining the

where an agency makes a change with effect of a superseding act of Congress.

retroactive effect, the reviewing court must

also determine whether application of the B.

new policy to a party who relied on the old The petitioners also claim, citing Hulin, 178

is so unfair as to be arbitrary and capri- F.3d at 333, that the judicial retroactivity

cious. doctrine is inapplicable to apply Roldan and

Hernandez-Avalos to their cases because they

Id. We concluded that in evaluating the retro- claim that judicial retroactivity cannot trump

active effect of a change in administrative pol- the claimed due process violation, the require-

icy, we “balance the ills of retroactivity against ment of “fair notice” under BMW of North

the disadvantages of prospectivity.” Id. America v. Gore, 517 U.S. 559 (1996). In

Hulin, we noted several instances in which a

We do not apply the administrative retro- new rule does not “determine the outcome of

activity test in this case, where the rule that is the case”:

sought to be applied retroactively is not a

change in administrative policy, but rather an Thus, a court may find (1) an alternative

administrative decision that interprets a statu- way of curing the constitutional violation,

tory change. In Riley, the petitioner claimed or (2) a previously existing, independent

reliance on policy stated in a memorandum, legal basis (having nothing to do with retro-

issued by the agency, that was contrary to the activity) for denying relief, or (3) as in the

administrative decision made by the agency in law of qualified immunity, a well-estab-

his case. See id. at 1049-50. lished general legal rule that trumps the

new rule of law, which general rule reflects

Salazar-Regino may claim reliance on both reliance interests and other significant

policy expressed in Manrique befor her guilty policy justifications, or (4) a principle of

law, such as that of “finality” present in the

Teague context, that limits the principle of

22

This argument could only possibly apply to retroactivity itself. But, this case [where a

the retroactive application of Roldan, which was a concern about reliance alone has led the

BIA decision, and not the retroactive application of Ohio court to create what amounts to an ad

Hernandez-Avalos, which is one of this court’s hoc exemption from retroactivity involves

opinions. Consequently, this argument could bene-

no such instance[.]

fit only Salazar-Regino and not Rangel-Rivera,

who appeals only the retroactive application of

Hernandez-Avalos to prevent her obtaining discre-

Hulin, 178 F.3d at 333 (citing Reynoldsville

tionary relief from removal. Casket Co. v. Hyde, 514 U.S. 749, 758-59

14

(1995)). We then added: that the rulings should not be applied retroac-

tively because of reliance interestsSSthat

Evidently, the Supreme Court has con- petitioners detrimentally relied on the BIA’s

cluded that the Linkletter[23] and Chevron pronouncements pre-Manrique and pre-

Oil[24] departures from traditional retroac- Hernandez-Avalos. The Supreme Court has

tivity doctrine proved unsatisfactory. The repeatedly rejected reliance alone as a reason

Court’s most recent decisions substantially for overcoming the retroactivity doctrine.25 In

reject those departures and return to the this context, where reliance interests alone are

general rule of adjudicative retroactivity insufficient to overcome judicial retroactivity,

leaving only an indistinct possibility of the petitioners fail to cite any cases that dictate “a

application of pure prospectivity in an ex- well-established general legal rule that trumps

tremely unusual and unforeseeable case. the new rule of law, which general rule reflects

both reliance interests and other significant

Id. (emphasis added). The petitioners then cite policy justifications” as in the law of qualified

language from St. Cyr, 533 U.S. at 323-24, immunity. Hulin, 178 F.3d at 333 (emphasis

which stated that it would be “contrary to added).

‘familiar considerations of fair notice, reason-

able reliance and settled expectations’” to Although it is true that in St. Cyr, 533 U.S.

disrupt a fully-executed plea bargain by mak- at 321-22, the Court noted the problems of fair

ing drastic, retroactive, changes to its immi- notice in the context of attaching new disabili-

gration consequencesSSand claim that it estab- ties to plea agreements, that case dealt with

lishes the “extremely unusual” circumstances the question whether a statutory change could

envisioned by Hulin that may allow for the be applied retroactively by command of Con-

“indistinct possibility” that judicial rulings not gress, and did not deal with whether a judicial

be given retroactive effect. decision can be applied in such a way. See St.

Cyr, 533 U.S. at 321-22. This distinction is

The flaw in petitioners’ presentation is that importantSSalthough the plain, correct state-

it is in essence nothing more than an argument ment of the law provided St. Cyr with the type

of relief he desired at the time of his plea

agreement, Salazar-Regino and Rangel-Rivera

23

381 U.S. 618 (1965) (holding that a decision were relying on plainly erroneous interpreta-

to limit a new rule of criminal constitutional law to tions of the law in expecting relief at the time

prospective application can be based on a balanc- they pleaded guilty, as illuminated by the BIA

ing of the purpose of the new rule, the reliance in Roldan and by this court in Hernandez-

placed on the previous view of the law, and the

effect on the administration of justice of a retro-

spective application).

25

See, e.g., Harper, 509 U.S. at 97 (“In both

24

404 U.S. 97 (1971) (holding that in the fed- civil and criminal cases, we can scarcely permit the

eral noncriminal law context, a judicial decision substantive law [to] shift and spring according to

can be applied nonretroactively if it established a the particular equities of individual parties’ claims

new principle of law, if such a limitation will avoid of actual reliance on an old rule and of harm from

substantial inequitable results, and if retrospective a retroactive application of the new rule.”) (internal

application will not retard the purpose and effect of citations omitted); see also Reynoldsville Casket,

the new rule). 514 U.S. at 759.

15

Avalos.26 The district court and the BIA did violation may be based on timing.27

not err in applying Roldan and Hernandez-

Avalos retroactively. B.

Petitioners allege equal protection viola-

VII. tions based on the location of their proceed-

The petitioners argue that their removal ings; arguing that varying case law in other

violated the Equal Protection Clause for two circuits would have made them eligible for

reasons, based on alleged unequal disposition relief. We dismiss this claim as frivo-

of their cases resulting from the (1) timing and lousSSadopting this unsupported argument

(2) location of their proceedings. We examine would wreck havoc on the federal judicial

each in turn. system as we know itSSbasically disallowing

any split of authority between or among the

A. various circuits.

Salazar-Regino claims her rights under the

Equal Protection Clause were violated because

the results of her proceedings were influenced 27

Salazar-Regino cites only the separate opin-

by their timing. She finds unfairness in the fact ion in Logan v. Zimmerman Brush Co., 455 U.S.

that had her removal proceedings taken place 422 (1982), which would have found an Equal

a few weeks later, Roldan would already have Protection violation where a statute gave different

been issued, so the IJ would have found her treatment to discrimination claims that were con-

removable. Because, however, at that hypo- sidered by a Commission within 120 days of being

thetical time, Hernandez-Avalos would not yet filed by a complainant, and claims that were con-

have been issued, Salazar-Regino would have sidered afterwards (which would be summarily dis-

been eligible for discretionary relief. Although missed). The Court found no rational basis in the

Salazar-Regino is correct concerning the distinction, because “[t]erminating potentially

unfortunate effect of the timing of her pro- meritorious claims in a random manner obviously

ceedings, we dismiss the argument as frivo- cannot serve to redress instances of discrimina-

tion,” prevention of which is the purpose of the

lous, because she points to no persuasive

statute. See id. at 439 (separate opinion of Black-

authority that an Equal Protection Clause mun, J.).

This is distinguishable from the situation at

hand, because no statute works here to create di-

26

In Hernandez-Avalos, the alien argued that vergent outcomes based on timing of certain ac-

the interpretation of “aggravated felony” we artic- tions beyond Salazar-Regino’s control; rather, the

ulated in that case should not apply to him because, disparate effects are a result of the speed of the

had the INS officials properly applied BIA prece- removal proceedings in relation to the issuance of

dent at the time he was removed, his underlying other legal precedent. The fact is that any party

state crime would not have qualified. See who is subject to the effect of a judicial decision

Hernandez-Avalos, 251 F.3d at 508. We rejected that changes the interpretation of a statute can al-

this claim, noting that “[w]e see no reason why the ways complain that he received disparate treatment

procedural posture of this case requires us to hold vis-á-vis others whose cases were finalized before

that it was fundamentally unfair to treat Hernandez the new interpretation was rendered. We cannot

as an aggravated felon because he should have the find an equal protection violation in such a circum-

benefit of an agency’s erroneous interpretation of stance, because it would eviscerate the well-estab-

applicable law.” Id. at 509. lished judicial retroactivity doctrine.

16

VIII.

Petitioners contend their removal violated

international law. Their entire argument solely

consists of a citation to Beharry v. Reno, 183

F. Supp. 2d 584, 593-99 (E.D.N.Y. 2002).

This point is waived for failure to brief

adequately.28 Beyond failing to explain how

the cited opinion should apply to the instant

case, petitioners fail to mention that the opin-

ion is not even good law: It was overruled in

Beharry v. Ashcroft, 329 F.3d 51 (2d Cir.

2003).

IX.

In summary, we DISMISS Salazar-Regino-

’s claims that we transferred to this court,

pursuant to 28 U.S.C. § 1631, because the

BIA did not commit reversible error. We

AFFIRM the dismissal of the entirety of

Rangel-Rivera’s habeas petition and the claims

that remained in Salazar-Regino’s habeas

petition, because the district court committed

no reversible error.

28

See FED. R. APP . P. 28(a)(9)(A); see also

United States v. Ogle, 2005 U.S. App. LEXIS

12714, at *2 (5th Cir. June 27, 2005) (per curiam);

United States v. Martinez, 263 F.3d 436 (5th Cir.

2001).

17