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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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. |

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0413%3A2. Public record. Not legal advice.