Francisco Cardenas-Delgado v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO CARDENAS-DELGADO , No. 11-72057

Petitioner,

Agency No.

v. A036-224-865

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 29, 2012*

San Francisco, California

Filed June 26, 2013

Before: Proctor Hug, Jr., Jerome Farris,

and Edward Leavy, Circuit Judges.

Opinion by Judge Hug

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 CARDENAS-DELGADO V . HOLDER

SUMMARY**

Immigration

The panel granted Francisco Cardenas-Delgado’s petition

for review of the Board of Immigration Appeals’ decision

finding him ineligible for former INA § 212(c) relief because

his conviction for an aggravated felony was the result of a

trial.

The panel reasoned that in Vartelas v. Holder, 132 S. Ct.

1479 (2012), the Supreme Court made it clear that the

essential inquiry of retroactivity analysis is to determine

whether the new law attaches new legal consequences to

completed conduct, and that reliance is not required to prove

impermissible retroactivity. The panel held that Vartelas is

irreconcilable with this court’s previous cases holding that a

petitioner must prove detrimental reliance. Applying

Vartelas, the panel held that the repeal of § 212(c) relief

impermissibly attaches new legal consequences to the trial

convictions of aliens like Cardenas-Delgado by rendering

them ineligible for relief as a result of convictions that pre-

dated the repeal of § 212(c).

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CARDENAS-DELGADO V . HOLDER 3

COUNSEL

Stephen Coghlan, San Francisco, California, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Richard

M. Evans, Assistant Director, and Andrew Oliveira, Trial

Attorney, United States Department of Justice, Office of

Immigration Litigation, Washington, D.C., for Respondent.

OPINION

HUG, Circuit Judge:

Francisco Cardenas-Delgado, a legal permanent resident

of the United States since 1976, appeals from the Board of

Immigration Appeals’ (“BIA”) decision affirming an

immigration judge’s (“IJ”) decision that he is ineligible for

relief from removal under former Immigration and

Naturalization Act § 212(c), 8 U.S.C. § 1182(c) (1988),

because his conviction for an aggravated felony was the result

of a trial. Cardenas-Delgado argues that this was error

because it is impermissibly retroactive to apply the repeal of

§ 212(c) relief to him. We grant Cardenas-Delgado’s petition

for review.

The Supreme Court’s recent decision in Vartelas v.

Holder, 132 S. Ct. 1479 (2012), makes it clear that the

essential inquiry of retroactivity analysis is to determine

whether the new law attaches new legal consequences to

completed conduct and that evidence regarding reliance is not

required to prove that a new law is impermissibly retroactive.

The repeal of § 212(c) relief impermissibly attaches new legal

consequences to the trial convictions of aliens like Cardenas-

4 CARDENAS-DELGADO V . HOLDER

Delgado by rendering these aliens ineligible for relief as a

result of convictions that pre-dated the repeal of § 212(c).

BACKGROUND

Cardenas-Delgado is a native and citizen of Mexico who

was admitted to the United States in 1976 as a lawful

permanent resident. He is married and has three children.

In February 1991, Cardenas-Delgado was convicted, as a

result of a jury trial, of sale of cocaine, in violation of

California Health and Safety Code § 11352. He was

sentenced to three years in prison for that conviction.1

As a result of this conviction, over fifteen years later, on

June 6, 2006, Cardenas-Delgado was charged in a Notice to

Appear with being removable under § 237(a)(2)(A)(iii)

of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(A)(iii), based on a conviction for illicit

trafficking in a controlled substance, which is an aggravated

felony under 8 U.S.C. § 1101(a)(43)(B). At a hearing on

September 7, 2006, Cardenas-Delgado admitted the factual

allegations and conceded that he was removable, but said that

he would seek a § 212(c) waiver.

On September 7, 2006, Cardenas-Delgado submitted an

application for a § 212(c) waiver. The IJ ordered that

Cardenas-Delgado’s application for § 212(c) relief be

pretermitted on the grounds that he was ineligible for § 212(c)

relief because his conviction for the sale of cocaine was the

1

The record does not show how much time Cardenas-Delgado actually

served for this conviction, but it clearly was less than five years and the

government does not contend that it was five years or more.

CARDENAS-DELGADO V . HOLDER 5

result of a jury trial. The IJ therefore ordered the removal of

Cardenas-Delgado.

On appeal to the BIA, Cardenas-Delgado argued that he

was eligible for relief under § 212(c) at the time of his trial

conviction and that it was impermissibly retroactive to deny

him eligibility for such relief after the repeal of § 212(c). On

June 23, 2011, the BIA affirmed the IJ’s decision without an

opinion.

STANDARD OF REVIEW

Where, as here, the BIA affirms the IJ’s decision without

opinion, we review the decision of the IJ as if it were that of

the BIA. See Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.

2004). “We review de novo, and without Chevron deference

to the BIA, whether a change to an immigration law is

impermissibly retroactive.” Camins v. Gonzales, 500 F.3d

872, 880 (9th Cir. 2007).

DISCUSSION

Cardenas-Delgado contends that, at the time of his trial

for the aggravated felony, he would have been eligible for

discretionary relief under § 212(c) because he served less

than five years in prison, and he argues that the IJ and BIA

erred by retroactively applying the 1996 repeal of § 212(c) to

him. The key issue is whether electing to go to trial instead

of pleading guilty precludes the defendant from establishing

that the denial of § 212(c) relief was retroactively applied to

him. In order to fully understand these issues, it is first

important to understand the history of § 212(c) and the

fundamental legal principles governing retroactivity analysis

for civil statutes.

6 CARDENAS-DELGADO V . HOLDER

I. The Statutory Framework and History of § 212(c)

Section 212 of the Immigration and Nationality Act of

1952 excluded from the United States several classes of

aliens, including those convicted of offenses involving moral

turpitude or the illicit traffic in narcotics. 66 Stat. 182-87;

INS v. St. Cyr, 533 U.S. 289, 294 (2001). However, § 212(c)

contained a provision granting the Attorney General broad

discretion to admit excludable aliens. It stated: “Aliens

lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of

deportation, and who are returning to a lawful unrelinquished

domicile of seven consecutive years, may be admitted in the

discretion of the Attorney General.” 8 U.S.C. § 1182(c)

(1988) (repealed).

In 1988, Congress expanded the pool of aliens who were

deportable, establishing that an alien would be deportable

upon conviction for any aggravated felony. See Anti–Drug

Abuse Act of 1988, 102 Stat. 4469–4470, 8 U.S.C.

§ 1227(a)(2)(A)(iii). Congress subsequently enacted three

statutes that reduced the size of the class of aliens eligible for

discretionary relief from deportation.

First, in 1990, Congress amended § 212(c) to prohibit

discretionary relief for anyone convicted of an aggravated

felony who had served a term of imprisonment of at least five

years. § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182(c)).

It is significant that, at that time, even an alien deportable

because he had been convicted of an aggravated felony was

eligible for discretionary relief if he served a term of

imprisonment of less than five years. See 8 U.S.C. § 1182(c).

Cardenas-Delgado was convicted of his aggravated felony the

CARDENAS-DELGADO V . HOLDER 7

following year, 1991, and served less than five years in

prison.

Second, in 1996 Congress adopted § 440(d) of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214 (codified in relevant part

at 8 U.S.C. § 1182 (1996)). This act rendered all aliens

convicted of aggravated felonies ineligible for discretionary

relief from deportation under § 212(c). See 110 Stat. 1277

(amending 8 U.S.C. § 1182(c)).

Third, also in 1996, Congress passed the Illegal

8Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546. This

act repealed § 212(c) entirely, see § 304(b), 110 Stat.

3009–597, and replaced it with “cancellation of removal,”

which is not available to any alien convicted of an aggravated

felony regardless of the term of imprisonment imposed or

served. See 8 U.S.C. § 1229b (1996).

II. Retroactivity Jurisprudence Established by the

Supreme Court in Landgraf and St. Cyr

In Landgraf v. USI Film Products, 511 U.S. 244 (1994),

a landmark retroactivity case, the Supreme Court recognized

that a “presumption against retroactive legislation is deeply

rooted in our jurisprudence, and embodies a legal doctrine

centuries older than our Republic.” Landgraf, 511 U.S. at

265. The Court noted that the “presumption against statutory

retroactivity has consistently been explained by reference to

the unfairness of imposing new burdens on persons after the

fact.” Id. at 270. The Court further noted that, “[s]ince the

early days of this Court, we have declined to give retroactive

8 CARDENAS-DELGADO V . HOLDER

effect to statutes burdening private rights unless Congress had

made clear its intent.” Id.

The Court therefore established a two-step procedure for

determining whether a civil statute may apply retroactively.

First, when a statute is enacted after the events at issue in a

suit, the court must determine whether Congress expressly

provided that the statute should apply retroactively.

Landgraf, 511 U.S. at 280. If the answer is yes, then the

inquiry is complete and the statute applies retroactively. Id.

If the answer is no, then the court must proceed to the second

step and determine whether the statute would have a

retroactive effect. Id. If the statute would operate

retroactively, then the court must apply the traditional

presumption against retroactivity and prohibit retroactive

application of the statute. Id.

The Landgraf Court also explained that a determination

of whether a statute operates retroactively turns on “whether

the new provision attaches new legal consequences to events

completed before its enactment.” Id. at 269–70. This

assessment “comes at the end of a process of judgment

concerning the nature and extent of the change in the law and

the degree of connection between the operation of the new

rule and a relevant past event.” Id. at 270. The Court also

highlighted Justice Story’s classic explication of when

legislation is retroactive: “‘every statute, which takes away or

impairs vested rights acquired under existing laws, or creates

a new obligation, imposes a new duty, or attaches a new

disability, in respect to transactions or considerations already

CARDENAS-DELGADO V . HOLDER 9

past, must be deemed retrospective.’”2 Id. at 269 (quoting

Society for Propagation of the Gospel v. Wheeler, 22 F. Cas.

756 (No. 13,156) (C.C.N.H. 1814)). The Court noted that, in

hard cases, “familiar considerations of fair notice, reasonable

reliance, and settled expectations offer sound guidance” in

applying the test for retroactivity. Id. at 270.

In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court

applied Landgraf in the context of an immigration case when

considering the statutory elimination of § 212(c) relief. Id.

St. Cyr, a lawful permanent resident, pleaded guilty on

March 8, 1996 to a charge of selling a controlled substance.

Id. at 293. That conviction made him deportable. Id. Under

the law applicable at the time of his conviction, however, St.

Cyr would have been eligible for a § 212(c) waiver. Id.

Nevertheless, removal proceedings against him were initiated

after both AEDPA and IIRIRA became effective, and the

government asserted that St. Cyr no longer was eligible for a

waiver. Id.

The Supreme Court held that the repeal of § 212(c) would

not apply to St. Cyr. St. Cyr, 533 U.S. at 326. It reached this

conclusion by applying the two-step analysis outlined in

Landgraf. Applying the first step of Landgraf’s retroactivity

analysis, the Court first asked whether Congress had clearly

expressed an intention to make IIRIRA § 304(b) retroactive,

and concluded that it had not. St. Cyr, 533 U.S. at 315–20.

2

The Supreme Court has made it clear that this language by Justice

Story does not define the outer limits of impermissible retroactivity, but

instead describes several sufficient conditions, rather than necessary

conditions, for determining that legislation is retroactive. See INS v. St.

Cyr, 533 U.S. 289, 321 n.46 (2001); Hughes Aircraft Co. v. United States

ex rel. Schumer, 520 U.S. 939, 947 (1997).

10 CARDENAS-DELGADO V . HOLDER

The Supreme Court therefore proceeded to the second

step of the Landgraf framework and began by explaining that

“[t]he inquiry into whether a statute operates retroactively

demands a commonsense, functional judgment about whether

the new provision attaches new legal consequences to events

completed before its enactment.” Id. at 321 (internal

quotation marks omitted). The Court held that “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.” Id. (internal quotation marks and citations omitted).

The Court noted that “[p]lea agreements involve a quid

pro quo between a criminal defendant and the government,”

resulting in defendants waiving constitutional rights in

exchange for government benefits such as prompt punishment

and the preservation of prosecutorial resources. Id. at

321–22. “Given the frequency with which § 212(c) relief was

granted in the years leading up to AEDPA and IIRIRA,” the

Court reasoned that “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

to proceed to trial.” Id. at 323. The Court recognized that

“[r]elying 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, a great number of

defendants in . . . St. Cyr’s position agreed to plead guilty.”

Id. at 323. Therefore, the Court concluded that “it would

surely be contrary to ‘familiar considerations of fair notice,

reasonable reliance, and settled expectations’ . . . to hold that

IIRIRA’s subsequent restrictions deprive them of any

possibility of such relief.” Id. at 323–24 (quoting Landgraf,

511 U.S. at 270).

CARDENAS-DELGADO V . HOLDER 11

III. Is the Repeal of § 212(c) Relief Impermissibly

Retroactive as Applied to Cardenas-Delgado?

In the case currently before us, it is undisputed that

Congress did not express an intent to make the repeal of

§ 212(c) relief retroactive. We therefore focus on the second

part of the Landgraf framework. Cardenas-Delgado argues

that reliance is not a requirement for proving that the repeal

of § 212(c) relief is impermissibly retroactive, and that he

should be able to contend that the denial of § 212(c) relief is

retroactive even though he elected to go to trial.

In the wake of St. Cyr, courts have disagreed about

whether some kind of reliance on prior law is required in

order to successfully bring a retroactivity challenge to a new

immigration law. Relying on a Third Circuit case, Atkinson

v. Att’y Gen., 479 F.3d 222 (3d Cir. 2007), Cardenas-Delgado

argues that reliance is not required and the change in legal

consequences for events completed before the repeal of

§ 212(c) constitutes an impermissible retroactive effect. In

Atkinson, the petitioner had not been offered a plea agreement

and had been convicted by a jury of an aggravated felony in

1991. Id. at 224, 229. He received a sentence of less than

five years, leaving him eligible at that time for § 212(c) relief.

Id. at 224, 229–30. The BIA held that he was not eligible for

§ 212(c) relief because St. Cyr applied only to aliens who had

entered into plea agreements and not to aliens who, like

Atkinson, had been tried and found guilty. Id. at 224–25.

The Third Circuit disagreed and granted the petition for

review. Id. at 231. The court rejected the proposition that St.

Cyr supported the conclusion that there must be reliance on

the prior state of the law in order to hold that the elimination

of § 212(c) relief is impermissibly retroactive. Id. at 228–29.

12 CARDENAS-DELGADO V . HOLDER

The court reasoned that the Supreme Court had never held

that reliance on the prior law is a requirement to determine

that a law is impermissibly retroactive. Id. at 227–29.

The Atkinson court therefore held that even aliens who

had not been offered plea bargains and had been convicted of

aggravated felonies following a trial would be eligible for

§ 212(c) relief if the alien was convicted at a time when that

conviction would not have rendered him ineligible for

§ 212(c) relief. Id. at 229–30. The court reasoned that

eliminating the availability of relief would be impermissibly

retroactive because it would attach new consequences (the

certainty of deportation rather than the possibility of

deportation) to events (the conviction) completed before the

repeal of § 212(c). Id. at 230.

Similarly, based on its interpretation of Landgraf,

Hughes, and St. Cyr, the Fourth Circuit held in an IIRIRA

case that “reliance (whether subjective or objective) is not a

requirement of impermissible retroactivity.” See Olatunji v.

Ashcroft, 387 F.3d 383, 388 (4th Cir. 2004). Instead, the

Fourth Circuit concluded, the standard is “‘whether the new

provision attaches new legal consequences to events

completed before its enactment’” Id. at 395 (quoting

Landgraf, 511 U.S. at 269).

However, in contrast to the Third and Fourth Circuits, we

have held on more than one occasion, either implicitly or

explicitly, that a petitioner must prove some kind of

detrimental reliance on pre-existing law to succeed in a

retroactivity challenge to a new immigration law. For

example, in Armendariz-Montoya v. Sonchik, 291 F.3d 1116,

1121–22 (9th Cir. 2002), without explicitly stating that

reliance was a requirement to prove impermissible

CARDENAS-DELGADO V . HOLDER 13

retroactivity, we denied the petition for review when we

determined that the petitioner could not establish reliance on

the prior availability of the § 212(c) waiver.

In Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1133–34

(9th Cir. 2007), where the petitioner had sought § 212(c)

relief, we concluded that the alien had failed to show the

required reliance on prior law and that an alien could not

establish impermissible retroactivity by showing that a

change in the law attached new legal consequences to past

conduct. Similarly, in Hernandez de Anderson v. Gonzales,

497 F.3d 927 (9th Cir. 2007), we recognized that there was a

split in authority regarding the proper interpretation of St. Cyr

and stated: “Expressly disapproving the conclusion of the

Third and Fourth Circuits, this court has held that aliens

claiming that IIRIRA’s repeal of relief from deportation is

impermissibly retroactive as applied to them must

demonstrate reasonable reliance on pre-IIRIRA law.” Id. at

939.

However, after the development of this split in authority,

the Supreme Court recently decided a case that undercuts

Ninth Circuit law and demonstrates that no form of reliance

is required in order to successfully challenge the denial of

§ 212(c) relief on grounds that the repeal of such relief is

retroactive. Subsequent to the BIA’s decision in Cardenas-

Delgado’s case and the filing of his brief in this appeal, the

Supreme Court decided Vartelas v. Holder, 132 S. Ct. 1479

(2012). In Vartelas, the Supreme Court held that it was

impermissible to retroactively apply another IIRIRA

provision, 8 U.S.C. § 1101(a)(13)(C)(ii), to a lawful

permanent resident whose conviction was obtained prior to

the enactment of IIRIRA. Id. at 1483–84. When Vartelas

pleaded guilty to a crime involving moral turpitude in 1994,

14 CARDENAS-DELGADO V . HOLDER

an alien in his situation was permitted to travel abroad for

brief periods without jeopardizing his lawful permanent

resident status. Id. at 1483. However, Congress subsequently

enacted IIRIRA, which rendered lawful permanent residents

who had a conviction like Vartelas’s removable if they

traveled abroad and returned to the United States. Id. at 1483.

Vartelas traveled to Greece in 2003 to visit his parents. Id.

Upon his return to the United States, he was treated as

inadmissible under IIRIRA and placed in removal

proceedings. Id.

Relying on both Landgraf and St. Cyr, the Supreme Court

held that the new provision of IIRIRA was impermissibly

retroactive because it “attached a new disability (denial of

reentry) in respect to past events (Vartelas’ pre-IIRIRA

offense, plea, and conviction).” Id. at 1483–84, 1487–88. In

the course of its opinion, the Supreme Court made it clear that

neither actual reliance nor reasonable reliance was required

to show that a statute was impermissibly retroactive. Id. at

1490–91. The Court emphasized that even the government

acknowledged that the Supreme Court had not required a

party challenging the retroactive application of a statute to

show he relied on prior law in structuring his conduct. Id. at

1490. In addition, the Court noted that, in some of its prior

cases, it had held that it was impermissible to apply a new

law retroactively, even though detrimental reliance was not

apparent in those cases. Id. at 1490–91 & n.8. Citing to

Landgraf and a Third Circuit case, the Court went on to state:

The operative presumption, after all, is that

Congress intends its laws to govern

prospectively only . . . . “It is a strange

‘presumption,’” the Third Circuit commented,

“that arises only on . . . a showing [of] actual

CARDENAS-DELGADO V . HOLDER 15

reliance.” Ponnapula v. Ashcroft, 373 F.3d

480, 491 (2004). The essential inquiry, as

stated in Landgraf, 511 U.S., at 269–270,

114 S. Ct. 1483, is “whether the new

provision attaches new legal consequences to

events completed before its enactment.” That

is just what occurred here.

Id. at 1491 (emphasis added). The Court explicitly stated that

the likelihood of reliance on prior law is not a necessary

predicate for proving retroactivity. Id.

Thus, after Vartelas, it is clear that someone seeking to

show that a civil statute is impermissibly retroactive is not

required to prove any type of reliance and that the essential

inquiry is whether the new statute attaches new legal

consequences to events completed before the enactment of

the statute. Vartelas dictates our decision in the case before

us. The Fifth Circuit recently considered Vartelas when

deciding a case very similar to the instant case. See

Carranza-De Salinas v. Holder, 700 F.3d 768 (5th Cir. 2012).

In 1993, prior to the repeal of § 212(c), Carranza had been

convicted at trial of possession of marijuana with intent to

distribute and had served a sentence of less than five years.

Id. at 769–70. The Fifth Circuit changed its previous law and

rejected the government’s argument that Carranza was

required to show reliance. Id. at 772–75. The court held that

the repeal of § 212(c) relief impermissibly attached new legal

consequences to Carranza’s conviction. Id. at 774–75.

In light of Vartelas, we conclude that the court in

Carranza-De Salinas was correct in its conclusion that

an alien need not prove any type of reliance in order to show

that the repeal of § 212 relief is impermissibly retroactive and

16 CARDENAS-DELGADO V . HOLDER

need only show that the repeal is impermissibly retroactive

because it attaches new consequences to a trial conviction for

an aggravated felony. Just as IIRIRA’s repeal of § 212(c)

relief attached new legal consequences to the trial

conviction in Carranza-De Salinas, the repeal attached new

consequences to Cardenas-Delgado’s trial conviction. The

record indicates that, before the passage of IIRIRA,

Cardenas-Delgado was eligible for § 212(c) relief, but

afterwards he was not.

The government, however, contends that we are bound by

our prior law establishing that an alien who chose to go to

trial and was convicted prior to IIRIRA’s effective date is

ineligible for § 212(c) relief because he cannot establish

reasonable reliance on pre-IIRIRA law. We disagree.

We have held that, although a three-judge panel generally

may not overrule a prior decision of this court, that rule does

not take into account situations in which the prior decision

has been “undercut by higher authority to such an extent that

it has been effectively overruled by such higher authority and

hence is no longer binding on district judges and three-judge

panels of this court.” Miller v. Gammie, 335 F.3d 889, 899

(9th Cir. 2003) (en banc). In this case the ruling was undercut

by the Supreme Court. In Miller, we reasoned that the goal

of preserving the consistency of circuit law “must not be

pursued at the expense of creating an inconsistency between

our circuit decisions and the reasoning of state or federal

authority embodied in a decision of a court of last resort.” Id.

at 900. When a three-judge panel is deciding whether prior

case law has been overruled, “the issues decided by the

higher court need not be identical in order to be controlling.

Rather, the relevant court of last resort must have undercut

CARDENAS-DELGADO V . HOLDER 17

the theory or reasoning underlying the prior circuit precedent

in such a way that the cases are clearly irreconcilable.”

According to the government, Vartelas has not undercut

the theory or reasoning of this court’s precedent in a way that

renders the cases clearly irreconcilable with Vartelas. The

government argues that the statutory provision at issue in

Vartelas was a different statutory provision that did not

involve a petitioner’s eligibility for § 212(c) relief and further

argues that Vartelas is a narrow decision focused on a

discrete issue. These arguments are unpersuasive for two

reasons.

First, nowhere in the Vartelas Court’s discussion of

retroactivity did the Supreme Court suggest that it was

limiting its decision that there was no reliance requirement to

the particular statute at issue in that case. See Vartelas,

132 S. Ct. at 1490–91. In fact, the Supreme Court used very

broad language to state that it “has not required a party

challenging the application of a statute to show [he relied on

prior law]” and that the “presumption against retroactive

application of statutes does not require a showing of

detrimental reliance.” Id. at 1490 (internal quotation marks

omitted). Moreover, when stating that the essential inquiry

is whether the new provision attaches new legal consequences

to events completed before its enactment, the Vartelas Court

quoted Landgraf, id. at 1490, a case that not only addressed

a different statute than the one at issue in Vartelas, but

established the principles that generally apply when assessing

the retroactivity of civil statutes. See Fernandez-Vargas v.

Gonzales, 548 U.S. 30, 38 n.6 (2006). Moreover, in

Landgraf, the Supreme Court recognized that the presumption

that a statute should not operate retroactively applied to a

broad range of civil cases. Landgraf, 511 U.S. at 271–72.

18 CARDENAS-DELGADO V . HOLDER

Second, in the course of holding that there is not a

reliance requirement for proving that a statute is

impermissibly retroactive, the Supreme Court cited to

Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), a case

that, like the one currently before us, concerned whether the

repeal of § 212(c) relief was impermissibly retroactive for a

petitioner who had been convicted at trial of an aggravated

felony. See Vartelas, 132 S. Ct. at 1491. Thus, it is

unreasonable to conclude that the Supreme Court did not

intend for the principles it articulated in Vartelas to apply in

the context of determining whether the repeal of § 212(c)

relief may be applied retroactively to an aggravated felon

such as Cardenas-Delgado. The Fifth Circuit recognized this

when it changed its own law in response to Vartelas. See

Carranza-De Salinas, 700 F.3d at 770–72.

The government maintains that the Supreme Court

concluded in St. Cyr that reliance is the significant factor

when evaluating the retroactive effect of the loss of 212(c)

eligibility. This argument mischaracterizes St. Cyr.

Although much of the retroactivity discussion in St. Cyr

involved reliance, nowhere in St. Cyr did the Supreme Court

state that reliance is the significant factor when evaluating

the retroactive effect of the repeal of § 212(c) eligibility in

general or even in the guilty plea context. Moreover, in

St. Cyr, the Supreme Court reiterated Justice Story’s

pronouncement that a statute operates retroactively when it

attaches a new disability and it reaffirmed the principle that

the determination regarding whether a new statute operates

retroactively is based on whether the new statute attaches new

legal consequences to acts completed before its enactment.

St. Cyr, 533 U.S. at 321.

CARDENAS-DELGADO V . HOLDER 19

The government does not identify a logical reason for

why retroactivity law should be different in cases involving

§ 212(c) relief. The government contends that there is no

unfairness in retroactively applying the repeal of § 212(c)

because the petitioner is merely losing the potential for

§ 212(c) relief. However, the Supreme Court held in St. Cyr

that “the fact that § 212(c) relief is discretionary does not

affect the propriety of our conclusion. There is a clear

difference, for the purposes of retroactivity analysis, between

facing possible deportation and facing certain deportation.”

St. Cyr, 533 U.S. at 325. There can be no doubt that

eliminating the possibility of discretionary relief would

impose a serious new disability on Cardenas-Delgado. Like

the petitioner in Vartelas, if Cardenas-Delgado is removed,

his ability to be with his family will be severely restricted.

His wife and three children are in the United States and he not

only would be forced to leave them, but also would be forced

to leave the country that has been his home for over thirty-

five years. These facts, along with the fact that it appears that

Cardenas-Delgado has not committed a crime in over twenty

years, make it significantly more likely that he would, in fact,

receive relief from removal if he is eligible for such relief.

The criteria for determining whether to grant § 212(c) relief

include the seriousness of the offense, evidence of either

rehabilitation or recidivism, the duration of the alien’s

residence, the impact of deportation on the family, and the

number of citizens in the family. St. Cyr, 533 U.S. at 296 n.5.

Section 212(c) relief thus is designed to turn on the criminal

history and rehabilitation of the alien and the consequences

of removal to the alien and his family.

We hold that Vartelas is irreconcilable with our previous

precedent and that the law does permit Cardenas-Delgado to

present evidence in order to prove that the repeal of § 212(c)

20 CARDENAS-DELGADO V . HOLDER

eligibility is impermissibly retroactive as applied to him even

though he went to trial because the repeal attaches new legal

consequences to his conviction.

Cardenas-Delgado contends that even though he went to

trial he should have been given the opportunity to make a

reliance argument to show that the denial of eligibility for

§ 212(c) relief was impermissibly retroactive. However, with

our holding that it is unnecessary to show reliance to establish

that the denial of § 212(c) relief is retroactive, there is no

point in discussing whether Cardenas-Delgado could rely on

prior law even though he went to trial. It would simply be

dicta in this case.

CONCLUSION

We GRANT the petition for review, VACATE the BIA’s

order, and REMAND the case for further proceedings

consistent with this opinion.