Opposition Brief — Zamora v. Mukasey (No. 07-820)

No. 07-820 | |

In the Supreme Court of the United States”

FRANCISCO C. ZAMORA, PETITIONER

Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

JEFFREY 8. BUCHOLTZ

Acting Assistant Attorney

General

DONALD E. KEENER

ALISON R. DRUCKER

Altorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

As a result of 1996 amendments, aliens convicted of

certain offenses were made statutorily ineligible for a

discretionary waiver of deportation under Section 212(c)

of the Immigration and Nationality Act, 8 U.S.C. 1182(c)

(1994). In INS v. St. Cyr, 533 U.S. 289 (2001), this Court

held that it would be impermissibly retroactive to apply

the 1996 amendments to an alien convicted of an aggra-

vated felony on the basis of a plea agreement made at a

time when the conviction would not have rendered the

alien ineligible for discretionary relief. The question

presented is:

Whether, in light of St. Cyr, it is impermissibly retro-

active to apply the 1996 repeal of Section 212(c) to an ali-

en who was convicted of a disqualifying offense after a

trial and who does not claim to have relied in any way on

the potential availability of discretionary relief under

Section 212(c).

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

Appendix - Oral Decision of the Immigration Judge

(Apr. 5, 2005)

TABLE OF AUTHORITIES

Cases:

Alexandre v. United States Att’y Gen., 452 F.3d 1204

(11th Cir. 2006)

Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th

Cir. 2002), cert. denied, 539 U.S. 902 (2003)

Atkinson v. Attorney Gen., 479 F.3d 222

(3d Cir. 2007)

Carranza-De Salinas v. Gonzales, 477 F.3d 200

(5th Cir. 2007)

Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002)

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

539 U.S. 926 (2003)

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)

Heaven v. Gonzales, 473 F.3d 167 (5th Cir. 2006) ........ 9

Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006)

Hernandez-Castillo v. Gonzales, cert. denied, 127 S.

Ct. 40 (2006)

Cases—Continued:

Hernandez-Castillo v. Moore, 436 F.3d 516 (5th Cir.),

cert. denied, 127 S. Ct. 40 (2006)

Hernandez de Anderson v. Gonzales, 497 F.3d 927

(9th Cir. 2007)

Hughes Aircraft Co. v. United States ex rel. Schumer,

eR AE ED 4k o50 ean eeb cb caesar dadsarvaas 10

INS v. St. Cyr, 533 U.S. 289 (2001) 2, 3, 5, 6, 9, 10

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

Lopez v. Gonzales, 127 S. Ct. 625 (2006)

Martin v. Hadix, 527 U.S. 343 (1997)

Mbea v. Gonzales, 482 F.3d 276 (4th Cir. 2007)

Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004)... . 5

Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005) ..........

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004)

Patel v. Ashcroft, 401 F.3d 400 (6th Cir. 2005)

Peralta v. Gonzales, 441 F.3d 23 (1st Cir. 2006) .........

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

Rankine v. Reno, 319 F.3d 93 (2d Cir.), cert. denied,

540 U.S. 910 (2003)

Republic of Austria v. Altmann, 541 U.S. 677 (2004) ....

Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004)

Reyes v. Mcklroy, 543 U.S. 1057 (2005)

Singh v. Mukasey, No. 07-1688-ag, 2008 WL 658239

(2d Cir. Mar. 13, 2008)

Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir.

| ERNE D POET Oe eee ee er or ae ere ¢

Stephens v. Ashcroft, 543 U.S. 1124 (2005)

Thom v. Gonzales, 546 U.S. 828 (2005)

Cases—Continued:

United States v. Herrera-Blanco, 232 F.3d 715 (9th

Cir. 2000)

Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006)

Statutes and regulation:

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1277

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208,

Tit. III, 110 Stat. 3009-597

§ 304(b), 110 Stat. 3009-597

§ 309(c)(5), 110 Stat. 3009-627

Immigration and Nationality Act, 8 U.S.C. 1101

et seq. :

8 U.S.C. 1182(a)(2)(A)@)(1)

8 U.S.C. 1182(a)(2)(A)@UT)

8 U.S.C. 1182(e) (1988) (§ 212(¢e))

8 U.S.C. 1182(¢) (1994)

8 U.S.C. 1229b (§ 240A)

8 U.S.C. 1229b(a)

8 U.S.C. 1229b(a)(2)

8 U.S.C. 1229b(a)(3)

8 U.S.C. 1229b(d)(1)(B) (Supp. V 2005)

Nicaraguan Adjustment and Central American Relief

Act, Pub. L. No. 105-100, § 203(a), 111 Stat. 2196

6 U.S.C. 251 (Supp. V 2005)

8 C.F.R. 1212.3(h) (2007)

Miscellaneous:

Executive Office for Immigration Review; Section

212(c) Relief for Aliens with Certain Criminal

Convictions Before April 1, 1997,

69 Fed. Reg. 57,826 (2004)

In the Supreme Court of the Anited States

No. 07-820

FRANCISCO C. ZAMORA, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1-8) is

not published in the Federal Reporter but is reprinted in

240 Fed. Appx. 150. The amended order of the Board of

Immigration Appeals (Pet. Supp. App. 1-5) and the oral

decision of the immigration judge (App., 22fra, la-4a)

are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 16, 2007. The petition for a writ of certiorari was

filed on October 15, 2007 (Monday). The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Former Section 212(c) of the Immigration and

Nationality Act (INA), 8 U.S.C. 1182(c) (1994) (repealed

(1)

2

1996), authorized a permanent resident alien domiciled

in the United States for seven consecutive years to apply

for discretionary relief from being excluded from the

country. By its terms, Section 212(c) “was literally ap-

plicable only to exclusion proceedings,” but it was con-

strued as applying to deportation proceedings as well.

INS v. St. Cyr, 533 U.S. 289, 295 (2001).

In the Antiterrorism and Effective Death Penalty

Act of 1996 (AE DPA), Congress am. ided Section 212(c)

to make ineligible for discretionary relief any alien pre-

viously convicted of certain offenses, including aggra-

vated felonies. See Pub. L. No. 104-132, § 440(d),

110 Stat. 1277. Later that year, in the Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996

(IIRIRA), Congress repealed Section 212(c) altogether,

see Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-597,

and replaced it with Section 240A of the INA, 8 U.S.C.

1229b, which provides for a more-limited form of discre-

tionary relief known as cancellation of removal. Like

Section 212(c) as amended by AEDPA, Section 240A

makes ineligible for discretionary relief aliens who

have been convicted of aggravated felonies. 8 U.S.C.

1229b(a)(3). It also requires an alien who is a lawful

permanent resident seeking such discretionary relief to

have “resided in the United States continuously for 7

years after having been. admitted in any status,”

8 U.S.C. 1229b(a)(2), and it cuts off that period of

“continuous residence” whenever the alien commits,

inter alra, a crime involving moral turpitude. 8 U.S.C.

1229b(d)(1)(B) (Supp. V 2005).

In St. Cyr, this Court held, based on principles of

non-retroactivity, that IIRIRA’s repeal of Section 212(c)

should not be construed to apply to an alien convicted of

an aggravated felony on the basis of an agreement to

plead guilty that was made at a time when the resulting

conviction would not have rendered the alien ineligible

for relief under Section 212(c). 533 U.S. at.314-326.

2. Petitioner is a native and citizen of Mexico who

entered the United States as a lawful permanent resi-

dent of the United States in 1985. Pet. App. 2. In 1990,

he pleaded guilty to, and was convicted of, possessing a

stolen motor vehicle. Pet. App. 2; Pet. C.A. Br. 3. In

1995 he was convicted of possession of cocaine, after

pleading not guilty and going to trial. Pet. App. 2-3. In

November 2001, the Immigration and Naturalization

Service (INS) commenced removal proceedings against

him after he attempted to re-enter the United States

after a trip to Mexico.' It alleged that petitioner was

removable because the.first offense-was a crime involv-

ing moral turpitude and the second was a controlled-

substance offense. Jbid. 2-3; App., infra, 2a; see 8

J.8.C. 1182(a)(2)(A)G@)(1) and (11).

At petitioner’s removal hearing, the immigration

judge (IJ) found petitioner removable on both of the

charged grounds. App., infra, 3a. Petitioner sought

discretionary relief from removal under Section 212(c).°

The IJ ruled that Section 212(c) relief is unavailable to

an alien convicted before the 1996 amendments if the

alien was convicted at trial. Because petitioner did not

plead guilty to the 1995 cocaine charge, the IJ found

that his application for Section 212(c) relief was preter-

mitted and ordered him removed to Mexico. Pet. App.

2-3; App., infra, 3a.

The INS’s immigration-enforcement functions have since been

transferred to the Department of Homeland Security. See 6 U.S.C. 251

(Supp. V 2005).

Petitioner did not apply for cancellation of removal under Section

240A. Pet. App. 5; Pet. 2

4

Petitioner appealed to the Board of Immigration Ap-

peals (BIA), contesting, inter alia, his ineligibility for

Section 212(c) relief. The BIA issued a decision on May

16, 2006, and then issued amended decisions on May 24

and 25, 2006. Pet. Supp. App. 2,5 n.1. The BIA deter-

mined that, because petitioner’s controlled-substance

conviction did not result from a guilty plea, petitioner is

ineligible for Section 212(c) relief, and “there is nothing

in [St. Cyr] which indicates that its reasoning applies to

aliens who failed to enter a plea of guilty or nolo conten-

dere:” /d. at 4. In support of its conclusion, the BIA

cited decisions from the Seventh Circuit and other

courts of appeals. /d. at 4-5.

3. Petitioner then filed a petition for review of the

BIA’s decision with the United States Court of Appeals

for the Seventh Circuit. Pet. App. 2. In the court of ap-

peals, petitioner explained that, “[a]lthough it was never

discussed in the proceedings below,” he is “not eligible

for relief under the current law of cancellation of re-

moval at § 240A” because his 1990 conviction for an of-

fense involving moral turpitude precludes him from es-

tablishing the seven years of continuous residence re-

quired for discretionary relief by 8 U.S.C. 1229b(a)(2).

Pet. C.A. Br. 3-4; see also 8 U.S.C. 1229b(d)(1)(B) (Supp.

V 2005) (terminating “period of continuous presence”

upon alien’s commission of certain offenses).”

Before the IJ and the BIA, the parties apparently assumed that the

1995 conviction for possession of cocaine was an “aggravated felony”

that precluded cancellation of removal by virtue of 8 U.S.C. 1229b(a)(3).

After petitioner filed his petition for review in the court of appeals, but

before he filed his supporting brief, this Court held that a state con-

viction for mere possession of an amount of cocaine too small to distrib-

ute did not constitute an “aggravated felony” under the INA, see Lopez

v. Gonzales, 127 S. Ct. 625 (2006). Petitioner thus claimed in the court

of appeals that he was not ineligible for Section 240A relief on the basis

5

Although petitioner claimed that his 1990 conviction

bars him from receiving a discretionary grant of cancel-

lation of removal under current law, his argument in the

court of appeals—like his retroactivity argument before

the IJ and the BlA—was necessarily focused on

ITRIRA’s retroactive effect in repealing former Section

212(c) vis-a-vis his 1995 conviction, which had followed

a trial rather than a guilty plea. Pet. App. 3; Pet. C.A.

Br. 7-10. Thus, petitioner argued that St. Cyr does not

require him to demonstrate reliance on Section 212(c).

Pet. App. 3.

4. The court of appeals denied the petition for re-

view. Pet. App. 1-8. It rejected petitioner’s argument

that St. Cyr does not require any showing of reliance. It

described this Court’s analysis in St. Cyr as being based

upon: (1) the retroactive effect that followed from the

“almost certain{]’” reliance by those pleading guilty up-

on the likelihood of receiving Section 212(c) relief in de-

ciding to forgo their right to a trial; and (2) “the quid

pro quo involved in plea agreements,” whereby those

pleading guilty gave up their right to a trial and the gov-

ernment benefitted. Pet. App. 5 (quoting St. Cyr, 533

U.S. at 325). The court also noted that its own prece-

dent had already “foreclosed the possibility of § 212(c)

relief for an alien who did not plead guilty to an aggra-

vated felony prior to IIRIRA, reasoning that he ‘did not

abandon any rights or admit guilt in reliance on contin-

ued eligibility for § 212(c) relief.’” Jbzd. (quoting Mon-

tenegro v. Ashcroft, 355 F.3d 1035, 1036-1037 (7th Cir.

2004)).

of any aggravated felony, Pet. C.A. Br. 3 & n.1, and the government did

not dispute that conclusion, Pet. App. 4.

6

The court of appeals observed that “the vast majority

of lother] circuits” agreed with its view. Pet. App. 5-6.

It did, however, note three courts that contemplate a

showing of reliance from something other than a guilty

plea in certain circumstances: Restrepo v. McElroy, 369

F.3d-627, 634-635 (2d Cir. 2004) (aliens can demonstrate

reliance, despite pleading not guilty, by showing they

delayed applying for Section 212(c) relief to “build a

stronger case of rehabilitation”); Ponnapula v. Ashcroft,

373 F.3d 480, 494 (3d Cir. 2004) (aliens going to trial

may show reliance if they turn down a plea agreement);

and Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir. 2006)

(because of “objectively reasonable reliance on prior

law,” the repeal of Section 212(c) does not apply to aliens

who contest an aggravated felony charge but forgo their

right to appeal). Pet. App. 6. After observing that peti-

tioner did not argue that he could show any of those

forms of reliance, the court stated that “[oJnly the

Fourth Circuit” had accepted petitioner’s view and

“wholly foresworn a reliance requirement.” /d. at 7 (cit-

ing Olatunji v. Ashcroft, 387 F.3d 388, 396 (4th Cir.

2004)). Finally, the court concluded that petitioner’s

formulation would allow “all aliens convicted of crimes

prior to IIRIRA” to remain eligible for relief, and thus

render moot “virtually all of [this Court’s] analysis in St.

Cyr.” Id. at 7-8. Accordingly, it affirmed the BIA’s de-

nial of relief and denied the petition for review. /d. at 8.

ARGUMENT

Petitioner contends (at 11-18) that JNS v. St. Cyr,

533 U.S. 289 (2001), has been misinterpreted by the ma-

jority of the courts of appeals and that it does not re-

quire any showing of reliance as the basis for a finding

of impermissibly retroactive effect. His case, however,

7

does not squarely present that question, because the

conviction that precludes him from seeking discretion-

ary relief from removal after the 1996 repeal of Section

212(c)—7.e., the discretionary relief of cancellation of

removal under Section 240A, 8 U.S.C. 1229b, which re-

placed former Section 212(c)—is not his 1995 conviction

for cocaine possession (which was not an aggravated

felony, see note 3, supra), but rather his 1990 conviction

for a crime involving moral turpitude (which petitioner

conceded below prevents him from accruing the neces-

sary period of continuous physical presence, see p. 4,

supra). Because petitioner’s submission in this Court is

based on the asserted application of ITRIRA to his 1995

conviction, the petition should be denied on this ground

alone.

Moreover, even assuming that petitioner’s request

for relief turns on the extent to which reliance matters

to retroactivity analysis, the unpublished decision of the

court of appeals correctly rejected petitioner’s claims,

and this Court has already denied petitions urging a

similar extension of St. Cyr in at least four prior cases.

See Hernandez-Castillo v. Gonzales, 127 S. Ct. 40

(2006); Thom v. Gonzales, 546 U.S. 828 (2005); Stephens

v. Ashcroft, 543 U.S. 1124 (2005); Reyes v. McElroy, 543

U.S. 1057 (2005). The application of Section 212(c) is of

diminishing prospective significance.

1. The question presented turns on the interaction

between this Court’s decision about retroactivity in St.

Cyr and petitioner’s decision to “exercise[]} his right to

trial in a criminal case in 1995” by choosing not to “en-

ter[] a plea of guilty.” Pet. ii. But petitioner’s 1995 con-

viction at trial for possessing cocaine is not what pre-

cludes him from being eligible for the discretionary re-

lief from removal that he seeks. As petitioner concedes,

8

he is “ineligible for cancellation of removal” under cur-

rent law (Section 240A(a) of the INA, 8 U.S.C. 1229b(a)),

“because his 1990 offense [for possessing a stolen car]

* * * break[s| the” seven-year period of continuous

residence necessary to be eligible for such relief. Pet. 2

(emphasis added); see also Pet. App. 4-5. Petitioner

noted in the court of appeals that he pleaded guilty to

the 1990 offense. Pet. C.A. Br. 3. Thus, notwithstanding

the focus of the court of appeals, which followed the fo-

cus of the arguments in petitioner’s petition for review

of the BIA’s decision, this case does not present the op-

portunity to address the decisions of a majority of the

courts of appeals to “den[y] relief” under Section 212(c)

“absent a plea of guilty.” Pet. 11.

Moreover, the analysis necessary to determine

IIRIRA’s retroactive effect on petitioner’s 1990 guilty

plea would differ from that employed by the decisions

that petitioner describes as disagreeing about the retro-

active effect of the repeal of Section 212(c). That analy-

sis would depend on whether the provision stopping the

period of continuous residence upon the commission of

certain crimes, 8 U.S.C. 1229b(d)(1)(B) (Supp. V 2005),

known as the “stop-time rule,” applies retroactively to

petitioner’s 1990 conviction. As the First Circuit ex-

plained at length in Peralta v. Gonzales, 441 F.3d 238, 26-

28 (2006), the transitional provisions in Section 309(c)(5)

of IIRIRA, 110 Stat. 3009-627, as amended by the Nica-

raguan Adjustment and Central American Relief Act,

Pub. L. No. 105-100, § 203(a), 111 Stat. 2196, applied the

stop-time rule to immigration proceedings that began

“before, on, or after the date of enactment” of ITRIRA.

Peralta thus held that “Congress has expressly man-

dated that [the stop-time rule] be applied retroactively”

to crimes that occurred before 1996. 441 F.3d at 30; see

9

also Okeke v. Gonzales, 407 F.3d 585, 588 (3d Cir. 2005)

(applying stop-time rule to conviction from 1983 without

discussing retroactivity). The Fifth Circuit has ex-

pressly extended that analysis to immigration proceed-

ings (like petitioner’s) that “do not fall under [ITRIRA’s]

transitional rule” because they were “commenced after”

IIRIRA became fully effective in 1997. Heaven v. Gon-

zales, 473 F.3d 167, 174-176 (2006); but see Sinotes-Cruz

v. Gonzales, 468 F.3d 1190, 1201 (9th Cir. 2006) (holding

that “the permanent stop-clock rule contained in part B

of § 1229b(d)(1) is ambiguous * * * with respect to its

retroactive application to a conviction obtained pursuant

to a guilty plea”).

As even this cursory overview shows, determining

whether ITRIRA retroactively forbids petitioner from

being eligible for discretionary relief from removal in-

volves several considerations that were neither pressed

nor passed upon in the court of appeals, because peti-

tioner conceded below that his 1990 conviction rendered

him ineligible for cancellation of removal and has in-

stead focused on his 1995 conviction, which did not ren-

der him ineligible for cancellation of removal. The peti-

tion should be denied on this ground alone.

2. a. Even assuming that this case properly turns

on the retroactive effect of the bare repeal of Section

212(c), the court of appeals’ decision is correct. In St.

Cyr, this Court placed considerable emphasis on the fact

that “[p]lea agreements involve a quid pro quo,” where-

by, “[iJn exchange for some perceived benefit, defen

dants waive several of their constitutional rights (includ-

ing the right to a trial) and grant the government nu-

merous tangible benefits.” 533 U.S. at 321-322 (citation

and internal quotation marks omitted). In light of “the

frequency with which § 212(c) relief was granted in the

10

years leading up to AEDPA and IIRIRA,” the Court

concluded 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.” Jd. at 323. And because, in

the Court’s view, aliens in St. Cyr’s position “almost cer-

tainly relied upon th[e] likelihood [of receiving § 212(c)

relief] in deciding whether to forgo their right to a

trial,” the Court held that “the elimination of any possi-

bility of § 212(c) relief by IIRIRA has an obvious and

severe retroactive effect.” Jd. at 325.

In asserting that the court of appeals misinterpreted

St. Cyr, petitioner relies (at 11-16) on a series of retroac-

tivity cases: Landgraf v. USI Film Products, 511 U.S.

244 (1994), Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939 (1997), Martin v. Hadix, 527 U.S.

343 (1999), Republic of Austria v. Altmann, 541 U.S. 677

(2004), and Fernandez-Vargas v. Gonzales, 126 S. Ct.

2422 (2006). The last of those decisions, however, explic-

itly discussed St. Cyr and confirmed the importance of

reliance in the Court’s analysis. The Court stated that

in St. Cyr “we emphasized that plea agreements involve

a quid pro quo * * * in which a waiver of constitutional

rights * * * had been exchanged for a perceived bene-

fit * * * valued in light of the possible discretionary

relief, a focus of expectation and reliance.” Jd. at 2431-

2432 (internal quotation marks omitted). Distinguishing

the situation of Fernandez-Vargas from that of St. Cyr,

the Court remarked that, “before IIRIRA’s effective

date Fernandez-Vargas never availed himself of [provi-

sions providing for discretionary relief] or took action

that enhanced their significance to him in particular, as

St. Cyr did in making his gud pro quo agreement.” Jd.

at 2432 n.10. Similarly, as petitioner himself concedes

11

(at 13-14), “the consideration [of reliance] was clearly

important to [the Court’s] deliberations” in Martin, and

reliance was discussed in Altmann.

b. As petitioner acknowledges (at 11), the Seventh

Circuit is not the only court of appeals that has declined

to extend the holding of St. Cyr generally to aliens con-

victed at trial, precisely because of St. Cyr’s emphasis on

the showing of reliance provided by a guilty plea. At

least six others have done so as well.* See Hem v. Mau-

rer, 458 F.3d 1185, 1189 (10th Cir. 2006); Hernandez-

Castillo v. Moore, 436 F.3d 516, 520 (5th Cir.), cert. de-

nied, 127 S. Ct. 40 (2006); Rankine v. Reno, 319 F.3d 93,

102 (2d Cir.), cert. denied, 540 U.S. 910 (2003); Dias v.

INS, 311 F.3d 456, 458 (1st Cir. 2002), cert. denied, 539

U.S. 926 (2003); Chambers v. Reno, 307 F.3d 284 (4th

Cir. 2002); Armendariz-Montoya v. Sonchik, 291 F.3d

1116, 1121-1122 (9th Cir. 2002), cert. denied, 539 U.S.

* Petitioner identifics (at 8) Patel v. Ashcroft, 401 F.3d 400 (6th Cir.

2005), as a case “refusing to permit § 212(c) relief to any aliens except

those who, prior to IIRIRA, entered pleas of guilty.” But, after deter-

mining that Patel was an aggravated felon, the Sixth Circuit dismissed

the case for lack of jurisdiction, and did not reach the Section 212(c) is-

sue. See zd. at 402, 407, 411.

> In Chambers, the Fourth Circuit affirmed the BIA’s denial of

eligibility for Section 212(c) relief to an alien convicted pre-IIRIRA of

an aggravated felony after trial. 307 F.3d at 287, 293. The court held

that his “reliance interests” were not the same as those of an alien like

St. Cyr who had pleaded guilty. Jd. at 290-292. The court further sta-

ted that “an alien’s failure to demonstrate reliance on pre-IIRIRA law

might not foreclose” a retroactivity claim. /d. at 293. It determined,

however, that, “[e]ven if that is so,” IIRIRA’s repeal did not change the

impact of his “decision to go to trial on his immigration status” and

therefore did not have an improper retroactive effect on him. /bid.

12

902 (2008) (citing United States v. Herrera-Blanco, 232

F.3d 715, 719 (9th Cir. 2000)).°

3. In addition, the conflict among the circuits on the

general question of whether reliance is necessary to

show a retroactive effect is narrower than petitioner

claims. Petitioner points (at 8-10) to two cases holding

that reliance is not necessary to show a retroactive ef-

fect. But the Fourth Circuit’s decision in Olatunji, al-

though mentioned by the court below (Pet. App. 7), does

not conflict with the decision below. The retroactivity

issue in Olatunj? involved the loss of an alien’s ability to

take brief trips abroad without subjecting himself to

removal proceedings, 387 F.3d at 396, rather than !oss

of access to Section 212(c) relief. In fact, Olatwny? itself

distinguished the Fourth Circuit’s prior decision in

Chambers, which did involve Section 212(c). See 387

F.3d at 392 (discussing Chambers, 307 F.3d at 293).

° As the Seventh Circuit observed, some of the courts requiring rel-

iance have found that it can be demonstrated by circumstances other

than a guilty plea. Petitioner gives (at 17-18) further examples of such

cases. See Hernandez de Anderson v. Gonzales, 497 F.3d 927, 942-944

(9th Cir. 2007) (retroactivity found where lawful permanent resident

who applied for naturalization 18 months prior to IIRIRA reasonably

relied on access to suspension relief); Carranza-De Salinas v. Gon-

zales, 477 F.3d 200, 210 (5th Cir. 2007) (if alien can demonstrate on

remand that she “affirmatively decided to postpone” applying for

Section 212(c) relief to increase the likelihood of getting it, she would

establish a reasonable “reliance interest” sufficient to show improper

retroactivity); Wilson v. Gonzales, 471 F.3d 111, 122 (2d Cir. 2006)

(same). After the petition for a writ of certiorari was filed, the Second

Circuit further clarified its view, explaining that “an alien can never

[hope to] make the showing of detrimental reliance that Wil-

son requires if he did not actually apply for § 212(c) relief before he

became ineligible pursuant to the statute under which he seeks to have

his eligibility evaluated.” Singh v. Mukasey, No. 07-1688-ag, 2008 WL

658239, at *5 (Mar. 13, 2008).

13

Even after Olatunji, the Fourth Circuit has—directly

contrary to petitioner’s argument—continued to hold

that “IIRIRA’s repeal of § 212(c) did not produce an

impermissibly retroactive effect as applied to an alien

convicted after trial.” Mbea v. Gonzales, 482 F.3d 276,

281-282 (2007).

Nevertheless, the Third Circuit’s decision in Atkin-

son v. Attorney General, 479 F.3d 222 (2007), does con-

flict with the decisions discussed above. Atkinson dealt

with whether an alien who had not been offered a plea

bargain (unlike the alien in the Third Circuit’s prior de-

cision in Ponnapula) and who had been convicted of an

aggravated felony at a pre-IIRIRA trial was eligible for

Section 212(c) relief. Jd. at 229-230. The Third Circuit,

holding that a showing of reliance was not required,

stated that it was “not troubled by [its] dectum in Pon-

napula casting doubt on whether an alien in Atkinson’s

situation could demonstrate a reasonable reliance inter-

est necessary to demonstrate a retroactive effect.” Jd.

at 231. The court found that ILRIRA attached new legal

consequences to the alien’s conviction and resulting sen-

tence such that the BIA could not preclude Section

212(c) relief “because IIRIRA’s repeal of that section

cannot be applied retroactively.” Jbid.

4. Quite aside from the fact that seven circuits have

reached a result contrary to Atkinson, further review

would not be warranted for two additional reasons—

even if, contrary to our submission on point 1, supra,

this case properly presented the issue. First, the ques-

tion presented in the petition necessarily has diminish-

ing prospective significance, because it affects only re-

moval proceedings for aliens convicted at trials before

ITRIRA was enacted in 1996.

14

Second, it would in any event be premature for this

Court to decide whether St. Cyr’s holding applies to

aliens convicted of an aggravated felony at trial. A final

rule adopted by the Department of Justice to implement

St. Cyr by amending certain provisions of Title 8 of the

Code of Federal Regulations, see Section 212(c) Relief

for Aliens with Certain Criminal Convictions Before

April 1, 1997, 69 Fed. Reg. 57,826 (2004), provides that

the 1996 amendments to the INA barring Section 212(c)

relief apply to aliens who were convicted at trial. In its

response to comments received on its proposed rule, the

Department noted cases holding that “an alien who is

convicted after trial is not eligible for section 212(c) re-

lief under St. Cyr,” and then stated that it “has deter-

mined to retain the distinction between ineligible aliens

who were convicted after criminal trials[] and those con-

victed through plea agreements.” Jd. at 57,828. That

determination was reflected in the amended regulations,

which took effect on October 28, 2004. See id. at 57,833-

57,835; 8 C.F.R. 1212.3(h) (2007) (“Aliens are not eligible

to apply for section 212(c) relief under the provisions of

this paragraph with respect to convictions entered after

trial.”). Only a few courts have considered these regula-

tions in deciding whether St. Cyr’s holding applies to

aliens convicted at trial, see, e.g., Alexandre v.. United

States Att’y Gen., 452 F.3d 1204 (11th Cir. 2006), and

Atkinson itself did not reflect consideration of them.

Even if the issue might otherwise warrant review by this

Court at some point, review would be premature until

the effect of the regulations has been further considered

by the courts of appeals.

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

JEFFREY S. BUCHOLTZ

Acting Assistant Attorney

General

DONALD E. KEENER

ALISON R. DRUCKER

Attorneys

MARCH 2008

APPENDIX

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

i Chicago, Illinois

File No.: A 38 884 655

IN THE MATTER OF: FRANCISCO ZAMORA

Filed: Apr. 5, 2005

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: Royal F. Berg

ON BEHALF OF DHS: Joseph M. Yeung

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico, who

applied for admission into the United States on July 24,

2001, at Chicago’s O’Hare International Airport by pre-

senting a resident alien card in his name. The respon-

dent’s inspection was deferred based upon some crimin-

al matters reflected in his record.

(Specifically,] on December 27, 1990, the respondent

had been convicted in the State of Illinois, Circuit Court

of Cook County, for possession of a stolen motor vehicle

and had been sentenced to 24 months probation. On

August 14, 1994, the respondent had been convicted in

(la)

2a

the State of Illinois, Circuit Court of Cook County, for

possession of a controlled substance, and had been

sentenced to 24 months probation. The respondent was

deemed inadmissible and a Notice to Appear was issued

against [him] dated November 15, 2001 (Exhibit 1)

charging him with removability under Section

212(a)(2)(A)(i)(1) of the Immigration and Nationality

Act, as an alien convicted of a crime involving moral

turpitude, and under Section 212(a)(2)(A)(i)(ID) of the

Act, in that he is an alien who has been convicted of an

offense constituting a controlled substance offense.

The respondent, through his attorney, denied all the

allegations contained in the Notice to Appear, on March

21, 2003, and subsequently submitted a motion to this

Court, which has been entered into the record as Exhibit

6, seeking among other things the suppression of certain

documentation submitted by the Government, as well as

termination and for this Court’s recusal. Rather than is-

sue a hasty oral decision, this Court prepared a lengthy

written decision, which has been entered into the record

as Exhibit 7, addressing in detail the respondent’s mo-

tions, basically denying them and I incorporate herein,

by reference, the written decision dated March 25, 2005,

addressing each of the respondent’s arguments.

The respondent, in Exhibit 7, was ordered to present

to this Court any [application for] relief from removal

that he might be eligible for, at his hearing scheduled on

April 5, 2005. On said date, the respondent submitted to

the Court an application for advance permission to re-

turn to unrelinquished domicile on Form I-191. This

document has been entered into the record as Exhibit

No. 8. However, this Court determines that the respon-

dent is statutorily ineligible for a waiver under Section

‘>

oa

212(c) of the Immigration and Nationality Act, in that

the conviction record, found at Exhibit 3, shows that the

respondent had pled not guilty on February 8, 1995, to

possession of a controlled substance, and that the res-

pondent then had been in fact convicted and sentenced

to probation and other conditions on April 11, 1995.

The respondent has objected to the admission into

the record of this conviction [record] from the Circuit

Court of Cook County, Illinois, however, my decision ad-

mitting it into the record has been addressed in my [pri-

or] written decision, which is found at Exhibit 7. Having

found that the respondent did not plead guilty, he can-

not avail himself of the Supreme Court decision in St.

Cyr v. INS, citation omitted, [ruling] that someone who

had pled guilty based on a belief that he might be elig-

ible for a waiver under Section 212(c) of the Act might

still be able to seek a waiver before the Immigration

Courts to date. Having found that the respondent did

not enter a plea of guilty but rather proceeded on a plea

of not guilty, and allowed the [Criminal] Court to make

its ultimate finding of guilty, he cannot seek 212(c) relief

to date, under the Supreme Court’s holding in St. Cyr.

Therefore, I must pretermit the respondent’s appli-

cation found at Exhibit 8, and there being no other av-

enue of relief available to the respondent I hereby order

the respondent removed to Mexico on the charges con-

tained in the Notice to Appear, and on the basis stated

4a

above, as well as in my written decision, which has been

incorporated herein.

/[S/ JENNIE L. GIAMBASTIANI *

JENNIE L. GIAMBASTIANI

United States Immigration Judge

[* Pen and ink corrections made by Immigration Judge

and relate to transcriber errors. |