Tyson v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACQUELINE TYSON, aka Jacqueline 

M. Ableman,

No. 08-70219

Petitioner,

v.  Agency No.

A022 209 179

ERIC H. HOLDER JR., Attorney

OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 18, 2011—San Francisco, California

Filed January 27, 2012

Before: M. Margaret McKeown and Milan D. Smith, Jr.,

Circuit Judges, and Rudi M. Brewster, District Judge.*

Opinion by Judge Brewster

*The Honorable Rudi M. Brewster, Senior United States District Judge

for the Southern District of California, sitting by designation.

799

802 TYSON v. HOLDER

COUNSEL

Kari E. Hong (argued), Law Offices of Kari E. Hong, Port-

land, Oregon; Kara L. Hartzler, Florence Immigrant and Ref-

ugee Rights Project, Florence, Arizona, for the petitioner-

appellant.

Anna Nelson (argued), Kiley L. Kane, Office of Immigration

Litigation, United States Department of Justice, Washington,

D.C., for the respondent-appellee.

OPINION

BREWSTER, Senior District Judge:

Jacqueline Tyson, a native of Australia, appeals the Board

of Immigration Appeals’ (“BIA”) order of removal as an alien

convicted of a controlled substance offense.1 Tyson argues

that the BIA erred when it decided that she is not eligible to

seek § 212(c) discretionary relief from removal pursuant to

the former Immigration and Nationality Act (“INA”), 8

U.S.C. § 1182(c), which was repealed in 1996 as to aliens

with certain criminal convictions. We agree with Tyson that

the stipulated facts trial in this case is substantially equal to

a guilty plea for the purpose of § 212(c) relief. We hold that

applying the repeal of § 212(c) relief would produce an

impermissible retroactive effect on Tyson, who was convicted

pursuant to a stipulated facts agreement based on a reasonable

expectation that it would not negatively affect her immigra-

tion status. INS v. St. Cyr, 533 U.S. 289, 319 (2001); Land-

graf v. USI Film Prods., 511 U.S. 244, 269-70 (1994).

Because the BIA erred in its legal analysis of the effect of this

1

The notice of removal was addressed to Jacqueline Tyson. After her

divorce from Mr. Tyson in 1980, petitioner remarried in 1982 and changed

her name to Ableman. We follow the lead of the record and briefs, and

also refer to petitioner as Tyson.

TYSON v. HOLDER 803

stipulated facts trial, we reverse and remand with instructions

to consider Tyson’s § 212(c) application on the merits.

I. Background

Tyson was born in Australia in 1952. She entered the

United States in 1973. She married an American citizen and,

in 1977, obtained lawful permanent resident status.

When Tyson’s marriage failed in 1980, she traveled to Aus-

tralia, Hong Kong, and Thailand. In Thailand, she had an

unexpected medical condition that required surgery. To ease

her pain and depression, Tyson turned to heroin. She returned

to the United States with 64.5 grams of heroin and was

arrested at the airport. The two-count indictment charged

importation of a controlled substance in violation of 21 U.S.C.

§ 952, and possession of a controlled substance with intent to

distribute in violation of 21 U.S.C. § 841(a)(1).

Tyson entered into a stipulation with the government. It

stated that Tyson, “after having discussed the matter with

counsel and having been satisfied with the advice received,

hereby agrees to submit the question of her guilt or innocence

of the counts in the above-entitled indictment to the Court on

the basis of the following set of stipulated facts and testimo-

ny.” The stipulation set out the constitutional rights that

Tyson waived; the weight and purity of the heroin; an expert

opinion that the heroin’s street value was over $100,000; and

that Tyson, who paid $350 for the heroin, intended to use it

exclusively for herself. After hearing argument, the district

court held that the facts established beyond a reasonable

doubt that Tyson was guilty of importing heroin; however,

because there was insufficient evidence that she intended to

distribute the drug the court found Tyson not guilty on count

two. The court imposed a term of three years probation.

At the time of Tyson’s 1980 conviction, the INA excluded

admission to the United States of any alien who had been con-

804 TYSON v. HOLDER

victed of “a violation of . . . any law or regulation relating to

the illicit possession of or traffic in narcotic drugs or marihua-

na.” 8 U.S.C. § 1182(a)(23) (1976). Section 212(c) of the INA

further stated, however, that aliens who had been “lawfully

admitted for permanent residence who temporarily proceeded

abroad voluntarily . . . and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may be

admitted in the discretion of the Attorney General” despite the

conviction. 8 U.S.C. § 1182(c) (1976) (repealed 1996).

Twenty-four years later, Tyson departed the United States,

and then sought re-entry in 2005. The Department of Home-

land Security (“DHS”) denied the request based on her 1980

conviction. 8 U.S.C. § 1182(a)(2)(A)(i)(II). Tyson applied for

a waiver of inadmissibility pursuant to former § 212(c). She

relied upon St. Cyr, 533 U.S. at 294, 321-22, in which the

Supreme Court held that § 212(c) relief remained available to

an alien who had entered a plea bargain with the expectation

that she would remain eligible for a waiver. DHS moved to

pretermit her § 212(c) application. Citing Armendariz-

Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir. 2002),

DHS argued that Tyson had not entered a guilty plea but

instead elected to have a bench trial, and therefore, she could

not credibly claim the repeal had an impermissible retroactive

effect.

The Immigration Judge (“IJ”) held that St. Cyr “cannot be

extended to [an] alien who pled not guilty and proceeded to

trial.” Consequently, the IJ held that Tyson was not eligible

to seek a waiver under § 212(c). The BIA adopted the IJ’s

decision and affirmed. This timely petition for review fol-

lowed.

II. Discussion

We have jurisdiction to review questions of law in final

orders of removal. 8 U.S.C. § 1252(a)(2)(D). “We review de

novo, and without Chevron deference to the BIA, whether a

TYSON v. HOLDER 805

change to an immigration law is impermissibly retroactive.”

Camins v. Gonzales, 500 F.3d 872, 880 (9th Cir. 2007) (cita-

tions omitted).

[1] Before 1996, the INA allowed a permanent resident

alien who had been convicted of a certain type of crime, but

who had at least seven years of residence, to apply for discre-

tionary relief from deportation pursuant to § 212(c). St. Cyr,

533 U.S. at 294-95 (citing 8 U.S.C. § 1182(c)). In determining

discretionary relief, the BIA considered a wide range of equi-

table factors, including the seriousness of the offense, evi-

dence of rehabilitation or recidivism, and the impact of

deportation on the family. Id. at 296 n.5. “If relief is granted,

the deportation proceeding is terminated and the alien remains

a permanent resident.” Id. at 295. Historically, an extremely

large class of aliens qualified for discretionary relief and “a

substantial percentage of their applications for § 212(c) relief

have been granted.” Id. at 295-96 & n.5.

Over the years, Congress “reduced the size of the class of

aliens eligible for such discretionary relief” by expanding the

class of deportable aliens. Id. at 294-97 & nn.4 & 6 (for

example, the Immigration Act of 1917 excluded aliens who

had committed crimes “involving moral turpitude,” while

1996 amendments “broadened substantially” the definition of

an “aggravated felony”).

[2] In 1996, Congress repealed § 212(c) for any alien with

a drug conviction and many other categories of crimes. Id. at

292-93, 297 & n.7 (citing the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996); Armendariz-Montoya,

291 F.3d at 1118 & n.1 (citing the Antiterrorism and Effective

Death Penalty Act, which “categorically negates § 212(c)

relief for those aliens deportable for having committed a qual-

ifying controlled substance offense or an aggravated felo-

ny.”).

[3] In 2001, the Supreme Court held in St. Cyr that the

repeal did not apply retroactively to “aliens who, in reliance

806 TYSON v. HOLDER

on the possibility of § 212(c) relief, pleaded guilty to aggra-

vated felonies.” 533 U.S. at 315. The Court applied the two-

part test from the landmark decision of Landgraf. The first

question is “whether Congress has expressly prescribed the

statute’s proper reach.” Landgraf, 511 U.S. at 280. In St. Cyr,

533 U.S. at 316, the Supreme Court determined that Congress

did not clearly prescribe the retroactive effect of the repeal of

§ 212(c). There is a presumption against retroactive legisla-

tion based on “[e]lementary considerations of fairness . . . that

individuals should have an opportunity to know what the law

is and to conform their conduct accordingly; settled expecta-

tions should not be lightly disrupted.” Id. (quotation and cita-

tion omitted). The Court held that Congress had not

unambiguously considered the retroactive impact on 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.” Id. at 320 & n.44. Therefore, we do not re-

visit this settled question.

We address the second question, whether the new statute

“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.” Land-

graf, 511 U.S. at 280.

[4] Judging the statute “by ‘familiar considerations of fair

notice, reasonable reliance, and settled expectations,’ ” the

Court in St. Cyr held that “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.’ ” 533 U.S. at 321-22 (citations

omitted). “In exchange for some perceived benefit, defendants

waive several of their constitutional rights (including the right

to a trial) and grant the government numerous ‘tangible bene-

fits, such as promptly imposed punishment without the expen-

diture of prosecutorial resources.’ ” Id. at 322 (citations

omitted). “There can be little doubt that, as a general matter,

TYSON v. HOLDER 807

alien defendants considering whether to enter into a plea

agreement are acutely aware of the immigration consequences

of their convictions.” Id. (citing Magana-Pizano v. INS, 200

F.3d 603, 612 (9th Cir. 1999) (“That an alien charged with a

crime . . . would factor the immigration consequences of con-

viction in deciding whether to plead or proceed to trial is

well-documented.”)) (footnote and citation to treatise omit-

ted). “Given the frequency with which § 212(c) relief was

granted in the years leading up to [the 1996 amendments],

preserving the possibility of such relief would have been one

of the principal benefits sought by defendants deciding

whether to accept a plea offer or instead proceed to trial.” Id.

at 323 (footnotes omitted). To remedy the “significant and

manifest” injustice, the Court held that the repeal did not

apply to such aliens. Id. at 323-26.

Initially, the Ninth Circuit generally limited the application

of St. Cyr to aliens who had agreed to enter a guilty plea in

reliance on the possibility of a waiver to removal.

Armendariz-Montoya, 291 F.3d at 1121-22; accord Saravia-

Paguada v. Gonzales, 488 F.3d 1122, 1131-34 (9th Cir.

2007); Kelava v. Gonzales, 434 F.3d 1120, 1122-25 (9th Cir.

2006). Here, the IJ held that these cases established a categor-

ical rule. The IJ found that Tyson “was convicted pursuant to

a guilty finding at bench trial.” She “waived her right to jury

trial; however, there is no evidence in the record that [Tyson]

entered into a plea agreement. Under current Ninth Circuit

law, St. Cyr cannot be extended to [an] alien who pled not

guilty and proceeded to trial.” The BIA affirmed without fur-

ther analysis.

A. Trial by Stipulation

[5] We conclude the BIA erred in its conclusion that St.

Cyr is restricted to plea bargains and that Tyson’s stipulated

facts trial rendered her ineligible for discretionary relief. “Al-

though evidence of a guilty plea or other quid pro quo

exchange that could reasonably have been made in reliance on

808 TYSON v. HOLDER

an old law is not the exclusive means of proving reliance, it

is clearly sufficient.” Camins, 500 F.3d at 884 (citations omit-

ted); Hernandez de Anderson v. Gonzales, 497 F.3d 927, 940

(9th Cir. 2007); see Garcia-Ramirez v. Gonzales, 423 F.3d

935, 943-44 & n.1 (9th Cir. 2005) (Fisher, J., and D.W. Nel-

son, J., concurring). “Reasonable reliance may itself be based

upon a quid pro quo, as in St. Cyr . . . or merely on assurances

as to the current status of the law.” Chang v. United States,

327 F.3d 911, 920 n.8 (9th Cir. 2003). Aliens claiming that

the 1996 “repeal of relief from deportation is impermissibly

retroactive as applied to them must demonstrate reasonable

reliance” on the earlier version of the statute. Hernandez de

Anderson, 497 F.3d at 939 (citing Kelava, 434 F.3d at 1124-

25 & n.7; Saravia-Paguada, 488 F.3d at 1134).

[6] We conclude that the stipulated facts trial in Tyson’s

case is similar to a guilty plea in all important respects for

purposes of applying St. Cyr to § 212(c). First, the defendant

in a stipulated facts trial, like the defendant who pleads guilty,

waives the constitutional right to a trial by a jury of her peers

with an unanimous verdict. Tyson’s stipulation with the gov-

ernment contained that specific waiver.

[7] Second, the defendant admits the truth of certain facts

which relieves the government of the burden of proving those

facts beyond a reasonable doubt. Here, Tyson admitted that

she smuggled 64.5 grams of heroin into the United States. Her

admission also waived her privilege against self-

incrimination.

[8] Third, the defendant in a stipulated facts trial waives

the constitutional right to confront the witnesses against her

and the right to cross-examine witnesses. Here, Tyson could

have questioned the expert witness’s conclusion that the

amount indicated an intent to distribute the heroin.

[9] Finally, like a guilty plea, an agreement to a stipulated

facts trial waives the defendant’s right to present evidence on

TYSON v. HOLDER 809

her own behalf. Here, Tyson waived her right to present a

medical-necessity defense.

[10] In conclusion, we hold that the stipulated facts trial in

this case entitles Tyson to invoke the St. Cyr line of cases in

her immigration proceeding even though she did not enter a

traditional guilty plea.

In an attempt to persuade us that a stipulated facts trial is

the equivalent of a bench trial for purposes of § 212(c) relief,

the BIA argues that Tyson “rolled the dice” by “elect[ing] to

go to trial where full acquittal is a realistic possibility.” The

BIA contends that Tyson simply exchanged a jury of twelve

for a judge as the finder of fact in an effort to avoid a convic-

tion. Indeed, the BIA observes, the district court found Tyson

not guilty of the distribution count.

We are not persuaded by this attempt to equate the proce-

dure used in Tyson’s case with a defendant who does not

plead guilty but instead proceeds to a bench trial. The govern-

ment often agrees to dismiss some of the counts in an indict-

ment in exchange for a defendant’s guilty plea to counts

covered by the plea bargain.2 This case is analogous. The

indictment charged two offenses — importation and posses-

sion with intent to distribute. Tyson stipulated that she smug-

gled 64.5 grams of heroin into the country. That admission

essentially guaranteed that she would not be acquitted on the

importation count. Thus, Tyson did not retain the realistic

2

A conviction based on a guilty plea could still be overturned for juris-

dictional or constitutional problems, unless the defendant expressly

waived the right to appeal. Many criminal defendants use stipulated facts

trials to preserve a question for appeal about the legality of a search or the

constitutionality of a statute. In those instances, if the defendants prevailed

on appeal, they would also “avoid criminal liability altogether.” In this

case, Tyson admitted facts which guaranteed conviction of at least impor-

tation of heroin. There would be no opportunity to reverse that count on

appeal unless she had preserved a jurisdictional or constitutional issue.

The same is true for a resolution of a case by a plea of guilty.

810 TYSON v. HOLDER

possibility that she would be acquitted on the first count by

choosing to proceed on stipulated facts trial. Nor was Tyson

guaranteed an acquittal on the distribution count. Tyson

risked a conviction on that count because the facts in the stip-

ulation presented a close call. For example, the substantial

market value of the heroin could be a convincing indication

that Tyson intended to sell it for a significant profit over her

minor investment.

More importantly, “while [Tyson] may have ‘rolled the

dice’ in terms of guilt or innocence at trial, [she] did not do

so with respect to immigration consequences in view of [her]

reasonable expectation that there would be no adverse immi-

gration consequences of going to trial.” Ponnapula v. Ash-

croft, 373 F.3d 480, 500 (3d Cir. 2004). Instead, Tyson “was

(retroactively) deceived as to what was riding on the roll of

the dice” because Congress amended the INA to eliminate

§ 212(c) discretionary relief for an alien convicted of a con-

trolled substance offense. Id.

Next, the BIA contends that there is no evidence to demon-

strate a quid pro quo between Tyson and the prosecution. This

argument fails on the law and the facts. We have held that

quid pro quo is not an essential requirement of the retroactiv-

ity doctrine. Camins, 500 F.3d at 884; Hernandez de Ander-

son, 497 F.3d at 940. In any event, the record establishes that

the government did benefit from Tyson’s agreement to a trial

on stipulated facts. The government was virtually assured a

conviction on the importation charge and it avoided the time

and expense of selecting a jury, preparing witnesses, and par-

ticipating in a trial.3 These are tangible benefits to the govern-

ment. See St. Cyr, 533 U.S. at 322.

3

Although the written stipulation does not cover sentencing issues, the

government apparently benefitted from the prompt imposition of its rec-

ommended sentence. St. Cyr, 533 U.S. at 322. Tyson states in her affidavit

that her defense attorney informed her that if she accepted the govern-

ment’s offer, she would not receive a prison term and would be on proba-

tion for three years. We credit her testimony that the government agreed

to recommend, or at least to not object to, a light sentence.

TYSON v. HOLDER 811

Third, the BIA complains that certain terms of the bargain

were not reduced to writing. A plea agreement, or in this

instance, the stipulated facts agreement, need not expressly

preserve an alien’s eligibility for § 212(c) relief for the 1996

amendments to be impermissibly retroactive. Ponnapula, 373

F.3d at 493, 497-98; e.g., Brown v. Poole, 337 F.3d 1155,

1159 (9th Cir. 2003) (“terms of oral plea agreements are

enforceable”).

Our conclusion is supported by the agency’s own regula-

tion on the availability of § 212(c) relief despite a conviction

before 1996. The regulation states that § 212(c) relief is avail-

able to “aliens who pleaded guilty or nolo contendere,” but

not with respect to “convictions entered after trial.” 8 C.F.R.

§ 1212.3(h) (2005); id. (regulation applies to aliens who made

a “plea agreement” before the effective date of the 1996

amendment). If a nolo contendere plea qualifies an alien for

relief, then a fortiori a stipulated facts trial qualifies. Fed. R.

Crim. P. 11 (same rights, procedures, and duties apply to a

guilty plea as to a nolo contendere plea); Cal. Penal Code

§ 1016(3) (a no contest plea has the same legal effect as a plea

of guilty). A defendant who enters a plea of nolo contendere

stands mute on the question of guilt or innocence and does not

offer any evidence. E.g., United States v. Mancinas-Flores,

588 F.3d 677, 681-83 (9th Cir. 2009). The burden on the gov-

ernment is much greater than the one imposed by Tyson’s

stipulated facts trial where she provided the necessary factual

basis.

B. Reliance, Settled Expectations, and Impaired Rights

Turning to the question of Tyson’s reliance, the BIA argues

it was per se unreasonable for her to rely on the continued

availability of § 212(c) relief.

[11] We conclude that the record establishes objectively

reasonable reliance. Hernandez de Anderson, 497 F.3d at 939.

Tyson submitted an affidavit stating that her criminal defense

812 TYSON v. HOLDER

attorney informed her that any conviction would not automati-

cally result in deportation. She believed that there would be

no irreparable immigration consequences by agreeing to have

her guilt determined based on stipulated facts. Had she known

that a conviction pursuant to a stipulated facts trial would

result in certain deportation, she would have fought to obtain

a complete acquittal by presenting her medical-necessity

defense to a jury.

Like the alien in St. Cyr, 533 U.S. at 314-15, Tyson’s con-

sent to a stipulated facts trial in 1980 created two conse-

quences: (1) she became subject to deportation and (2) she

became eligible for a discretionary waiver of that deportation

under the prevailing interpretation of § 212(c). Congress

changed the second consequence in 1996 by eliminating

Tyson’s eligibility for a waiver. Tyson benefits from the

observation in St. Cyr, 533 U.S. at 322, that “[t]here can be

little doubt that, as a general matter” alien defendants facing

criminal charges “are acutely aware of the immigration conse-

quences.” Accord Hernandez de Anderson, 497 F.3d at 940-

43 (petitioner who implicitly relied on her eligibility for relief

showed plausible and adequate reliance); Magana-Pizano,

200 F.3d at 612. Even though there is no guarantee that the

BIA would grant discretionary relief, the Supreme Court

acknowledged that “[t]here is a clear difference . . . between

facing possible deportation and facing certain deportation.”

St. Cyr, 533 U.S. at 325; accord Camins, 500 F.3d at 883.

Based on the evidence before the BIA, it is objectively rea-

sonable that the immigration consequences were an important

part of Tyson’s decision about how to handle the criminal case.4

4

Though the issue does not arise in this case, notions of basic fairness

and due process suggest that even aliens without actual knowledge of the

law are entitled to rely on the law as it existed. Arguably, an alien does

not need to prove reliance because each person impliedly relies on existing

law — both its benefits and its consequences. Olatunji v. Ashcroft, 387

F.3d 383, 388-95 (4th Cir. 2004). We leave open the question of whether

retroactive application of the repeal offends the Due Process Clause of the

Constitution. Id. at 389 n.2.

TYSON v. HOLDER 813

Significantly, at the time she brought heroin into the United

States, the INA held out a very real possibility that she would

qualify for discretionary relief from removal. St. Cyr, 533

U.S. at 321-22 & n.5; Hernandez de Anderson, 497 F.3d at

936-37.

[12] Even if Tyson had been convicted on both counts of

the indictment by a jury, she would have remained eligible to

seek a § 212(c) waiver in 1980. As Tyson already possessed

the right to apply for a waiver, there was no barrier for her to

overcome when she negotiated the waiver of certain constitu-

tional rights by agreeing to a stipulated facts procedure. None-

theless, Tyson plainly meets the principles and language in

the Landgraf decision. As that lead case frames the question,

applying the 1996 amendment retroactively to Tyson’s 1980

conviction “takes away or impairs vested rights acquired

under existing laws” and “attaches a new disability, in respect

to transactions or considerations already past.” Landgraf, 511

U.S. at 269 & n.23 (noting alternative language, including a

law is retroactive when it “changes the legal consequences of

acts completed before its effective date” or gives “a quality or

effect to acts or conduct which they did not have or did not

contemplate when they were performed”) (quotations and

citations omitted); see, e.g., Lopez-Castellanos v. Gonzales,

437 F.3d 848, 852-54 (9th Cir. 2006) (applying St. Cyr and

Landgraf to an alien who pleaded guilty in 1988 to a crime

that was not then considered an “aggravated felony” that

barred discretionary relief); Chang, 327 F.3d at 920 (Landgraf

asks if the new law imposes negative consequences “without

fair notice, or in a manner that undermines reasonable reliance

or upsets settled expectations”).

Conclusion

[13] We conclude that, for purposes of applying St. Cyr

and Landgraf, the repeal of § 212(c) imposes an impermissi-

ble retroactive effect on aliens like Tyson, who in reliance on

the possibility of discretionary relief, agreed to a stipulated

814 TYSON v. HOLDER

facts trial. The record demonstrates that Tyson reasonably

relied on the law that existed when she faced criminal pro-

ceedings in 1980; therefore, the repeal of § 212(c) may not be

applied retroactively to her conviction. We reverse the BIA’s

decision and remand Tyson’s case with instructions to con-

sider the merits of her § 212(c) application.

PETITION GRANTED.