Opposition Brief — Aguilar v. Mukasey (No. 07-1116)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

No. 07-1116

In the Supreme Court of the Gnited States

FIDEL CINTORA AGUILAR, PETITIONER

Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

GREGORY G. KATSAS

Acting Assistant Attorney

General

ALISON R. DRUCKER

JOSEPH D. HARDY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

In 1996, Congress repealed Section 212(c) of the Im-

migration and Nationality Act, 8 U.S.C. 1182(c) (1994),

which provided for a discretionary waiver of deporta-

tion, and replaced it with another form of discretionary

relief not available to aliens convicted of certain crimes,

including aggravated felonies and crimes involving

moral turpitude. In INS v. St. Cyr, 583 U.S. 289 (2001),

this Court held that the repeal of Section 212(c) should

not be construed to apply to an alien previously con-

victed of an aggravated felony through a plea agreement

at a time when the conviction would not have rendered

the alien ineligible for discretionary relief under that

section. The questions presented are:

1. Whether this Court’s holding in St. Cyr applies to

an alien found guilty by a jury of a crime involving moral

turpitude and who was not subject to deportation at the

time he decided not to appeal the jury’s finding.

2. Whether Congress’s expressly retroactive ap-

plication of the definition of “conviction” in 8 U.S.C.

1101(a)(48) violated petitioner’s due process rights by

rendering him deportable on the basis of an offense for

which he was not previously deportable.

(I)

TABLE OF CONTENTS

Page

SEINE 5S occ kh c cde cue wbewnendoeoys Fe Helemes ae 1

ESE tig Pe Or aera e are Pe pe E PN RENT 1

WR cong ca oe Peau ags cease oven 8

FURS Stare Sean erneey ea pe pays lee rinraeeAr yA 6

SESE OME CE OTS PHT OPEL GEE OE em 15

TABLE OF AUTHORITIES

Cases:

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

Ce a as hk ak ee ew cases 10

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

(9th Cir. 2002), cert. denied, 539 U.S. 902 (2003) ...... 9

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

Ms i i ek ee ee ether a eens 9

Bradley v. School Bd., 416 U.S. 696 (1974) ............ 14

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

A Mooi ak as ees es ee ek cence 5

Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002) ...... 9,10

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

RES 2) ere por er Pe eee ee 9

Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422 (2006) ...9

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ....... 13

Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006) .... 7,9, 11

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

cert. denied, 127 S. Ct. 40 (2006) .................... 9

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

SEe Ge PRED ok ba bbe 5 oe so cba ceesees 6, 12

Cases—Continued: Page

INS v. St. Cyr, 583 U.S. 289 (2001) .............. passim

Jideonwo v. INS, 224 F.3d 692 (7th Cir. 2000) ......... 14

Kleindienst v. Mandel, 408 U.S. 753 (1972) ............ 14

Landon v. Plasencia, 459 U.S. 21 (1982) ........... 13, 14

Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) ......... 9

Lehmann v. United States, 353 U.S. 685 (1957), at es vies 13

Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir.

BAN ea SE ein SPR a oe RLS Ch aka ces bien 5

Mbea v. Gonzales, 482 F.3d 276 (4th Cir. 2007) ....... 9,10

Moosa v. INS, 171 F.3d 994 (5th Cir. 1999) ............. 5

Mulcahey v. Catalanotte, 353 U.S. 692 (1957) .......... 13

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) ..... 9, 10

Ozkok, In re, 19 I. & N. Dec. 546 (B.1.A. 1988) .......... 5

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

TE, i obs boy bso Ca Sea ke eens e esas 9

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

2g ESERIES ea UE Sige Sa ogee Be pO G Carpe Let een nae 14

Zamora v. Gonzales, 240 Fed. Appx. 150 (7th Cir.

2007), cert. denied, No. 07-820 (Apr. 21, 2008) ........ 9

Statutes and regulation:

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1277 ....2

INegal Immigration Reform and Immigrant

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

Div. C, 110 Stat. 3009-546:

5 BG), TIO See, BROS ooo ee ete cane 2

§ 322(a), 110 Stat. 3009-628 . 2... ee eee 3, 12

Statutes and regulation—Continued: Page

§ 322(a)(1), 110 Stat. 3009-628 (8 U.S.C.

RN eS i win cs cue 2, 3, 12

§ S22c), 110 Stat. SO09-G29 .. cece ee cee 2

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

et seq.:

Rael BEE ibs ois ccsdceccccuccecess 2

EE TRESS {4 | re rere rere 4

SUSC. T1Bee) BIRO)... cece ee passim

AF ee I IAD akc vccncwccccsuusuncpeas 2,3

We i PD oon soos coc ceed ccs conwainus 2

RA RRs 6 ox Ns 65 4a 8 Seed evi cee vcecenseen’s 10

Miscellaneous:

Section 212(c) Relief for Aliens With Certain

Criminal Convictions Before April 1, 1997,

Oe We, TO CD oo oc csc cence ccc eneee 10

RT a ee Ve ain cc kn e soe ee been 10

eae acs CER KS eth cae CAs Sa CARER 10

In the Supreme Court of the Anited States

No. 07-1116

FIDEL CINTORA AGUILAR, PETITIONER

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

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

reported. The orders of the Board of Immigration Ap-

peals (Pet. App. 2-4) and the immigration judge (Pet.

App. 5-13) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 2, 2007. A petition for rehearing was denied on

November 28, 2007 (Pet. App. 20-21). The petition for a

writ of certiorari was filed on February 26, 2008. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

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

Act (INA), 8 U.S.C. 1182(c) (1994) (repealed 1996), au-

(1)

thorized permanent resident aliens domiciled in the

United States for seven consecutive years to apply for

discretionary relief from exclusion, subject to certain

exceptions. While, by its terms, Section 212(c) applied

only to exclusion proceedings, it was construed to apply

as well to deportation proceedings. See JNS v. St. Cyr,

533 U.S. 289, 295 (2001).

In 1996, Congress amended Section 212(c) to make

ineligible for discretionary relief aliens previously con-

victed of certain criminal offenses, including aggravated

felonies and crimes involving moral turpitude. See Anti-

terrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, § 440(d), 110 Stat. 1277; see also St. Cyr,

533 U.S. at 297 n.7. Later that year, in the Illegal Immi-

gration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), see Pub. L. No. 104-208, Div. C, § 304(b),

110 Stat. 3009-597, Congress repealed Section 212(c) in

its entirety, and replaced it with Section 240A of the

INA, 8 U.S.C. 1229b, which now provides for a form of

discretionary relief known as cancellation of removal

that is not available to many criminal aliens, including

those who have been convicted of a “crime involving

moral turpitude,” 8 U.S.C. 1182(a)(2)(A), 1229b(1)(C).

In IIRIRA, Congress also introduced for the first

time a definition of “conviction” for purposes of the INA.

Included within that new definition of a “conviction”

are some circumstances in which an adjudication of

an alien’s guilt was technically “withheld” but the alien

was found guilty and sentenced to some punishment

or penalty. See IIRIRA § 322(a)(1), 110 Stat. 3009-628

(8 U.S.C. 1101(a)(48)(A)). Congress specified that the

new definition of conviction would apply to convictions

that occurred before IIRIRA’s enactment. See IIRIRA

§ 322(c), 110 Stat. 3009-629 (“The amendments made by

[Section 322(a)] shall apply to convictions and sentences

entered before, on, or after the date of the enactment of

this Act.”) (emphasis added).

But Congress was not so specific about whether

IIRIRA’s repeal of Section 212(c) and replacement with

Section 240A should apply to aliens who were convicted

prior to the enactment of IIRIRA. In St. Cyr, this Court

held, based on principles of non-retroactivity, that

IIRIRA’s repeal of Section 212(c) should not be con-

strued to apply to an alien who had been convicted of an

aggravated felony through a plea agreement at a time

when the conviction would not have rendered the alien

ineligible for discretionary relief under Section 212(c).

See 533 U.S. at 314-326; see also id. at 318-319 & n.43

(contrasting Congress’s “unambiguous[] * * * inten-

tion” to apply “specific provisions” of IIRIRA retroac-

tively, including Section 322(a)(1)’s definition of “convic-

tion,” with its failure to be so specific about the retroac-

tive effect of its repeal of Section 212(c)). In particular,

the Court in St. Cyr explained that, before 1996, aliens

who decided “to forgo their right to a trial” by pleading

guilty to an aggravated felony “almost certainly relied”

on the chance that, notwithstanding their new convic-

tions, they would still have some “likelihood of receiving

§ 212(c) relief” fro. deportation. Jd. at 325.

2. Petitioner is a native and citizen of Mexico who

was admitted to the United States for lawful permanent

residence on December 1, 1990. Pet. App. 6. In 1993, he

was charged in Idaho state court with raping a 14-year-

old girl. 7d. at 7; Pet. 4. On February 2, 1994, a jury

found him guilty of the lesser-included offense of lewd

and lascivious conduct with a child under sixteen years

of age. Pet. App. 6; Pet. 4. On March 28, 1994, the court

entered an “Order Withholding Judgment,” pursuant to

which petitioner was placed on supervised probation.

Pet. 4-5. Petitioner’s attorney later explained that she

sought the order withholding judgment in an attempt to

prevent petitioner from having a “conviction” that would

make him deportable. Pet. App. 15-16. She also claimed

that, because petitioner was no longer concerned about

deportation, she advised him not to appeal his sentence,

and thus did not pursue an argument that he had been

subjected to “selective prosecution on the basis of race

and ethnic discrimination” when state prosecutors failed

to pursue a separate “statutory rape case involving a

Caucasian couple.” Jd. at 16. Two years later, Congress

added to the INA the definition of “conviction” that spe-

cifically included orders like the one withholding judg-

ment in petitioner’s criminal case, and Congress ex-

pressly made that amendment applicable to convictions

entered prior to the enactment of IIRIRA. See pp. 2-3,

supra.

3. a. In January 2007, when petitioner was return-

ing to the United States from a trip to Mexico, he was

arrested at a port of entry in Texas and paroled into the

country. Pet. App. 6. The Department of Homeland

Security (DHS) commenced removal proceedings, alleg-

ing that petitioner is removable because he is an alien

who has been convicted of a crime involving moral turpi-

tude. /bid.; see 8 U.S.C. 1182(a(2)(A)(i)(D).

b. In the removal proceedings, petitioner denied

both that he had been convicted of a crime involving

moral turpitude and that he is removable. Pet. App. 6.

The immigration judge (IJ) found that DHS had proved

by clear and convincing evidence that petitioner had

been convicted of a crime involving moral turpitude and,

therefore, that he was removable as charged. /d. at 7.

Petitioner then moved to terminate the proceedings,

asking the IJ to reconsider the finding that he had been

convicted of a crime involving moral turpitude based on

his assertion that the application of IIRIRA’s definition

of “conviction” to his withheld judgment is manifestly

unjust and thus violates due process. Pet. App. 7, 8.

Alternatively, petitioner sought a waiver of removal un-

der Section 212(c), alleging that he detrimentally relied

on the availability of Section 212(c) relief when he

waived his right to appeal the jury verdict finding him

guilty of lewd and lascivious conduct with a child under

sixteen years of age. /d. at 7, 9.

The IJ denied petitioner’s motion, ruling that it

lacked jurisdiction over the due process claim, and not-

ing that, in any event, similar arguments had already

been rejected by the Fifth Circuit. Pet. App. 8-9 (citing

Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (2004), and

Moosa v. INS, 171 F.3d 994, 1006-1007 (1999)). The IJ

also denied petitioner’s Section 212(c) application, ruling

that, although such relief may be available to criminal

aliens who proceeded to trial, Carranza-de Salinas v.

Gonzales, 477 F.3d 200, 205 (5th Cir. 2007), by peti-

tioner’s own admission, he was not deportable or inad-

missible when he accepted his withheld judgment, be-

cause withheld judgments were not then considered

“convictions” by the Board of Immigration Appeals

(BIA). Pet. App. 11 (citing /n re Ozkok, 19 1. & N. Dec.

546 (B.I.A. 1988)). The IJ thus determined that, in

choosing not to appeal, petitioner relied on his not being

deportable under the BIA’s interpretation of “convic-

tion” (which was later abrogated by statute) rather than

any expectation that he would be eligible for discretion-

ary relief from deportation under Section 212(c). Jd. at

12 (citing Carranza-de Salinas, supra, and St. Cyr, 533

U.S. at 289). The IJ ordered petitioner removed to Mex-

ico. Id. at 13.

ce. The BIA affirmed the IJ’s decision, finding that

the IJ properly determined that petitioner had a “con-

viction” for immigration purposes. Pet. App. 2-4. The

BIA agreed that Fifth Circuit precedent foreclosed peti-

tioner’s due process argument about Congress’s retroac-

tive application of IIRIRA’s definition of “conviction”

and that, in any event, the agency was without jurisdic-

tion to rule on the constitutionality of the statutes and

regulations that it administers. Jd. at 3. Additionally,

the BIA agreed with the IJ’s denial of petitioner’s Sec-

tion 212(c) application, ruling that his waiver of “his

right to appeal to avoid the consequences of having a

conviction for immigration purposes does not demon-

strate the requisite reliance on the continued availability

of section 212(c) relief.” Id. at 4.

4. The court of appeals summarily affirmed the BIA

without opinion in an unpublished per curiam order.

Pet. App. 1. The court construed petitioner’s subse-

quent motion for rehearing en banc as a motion to recon-

sider and denied it in an unpublished per curiam order.

Id. at 20-21. 3

ARGUMENT

1. Petitioner contends (Pet. 13-18) that this Court’s

holding in JNS v. St. Cyr, 5383 U.S. 289 (2001), which

involved aliens convicted of an aggravated felony after

a plea agreement, should be extended to aliens who were

found guilty of a deportable offense after a jury trial.

He contends that, insofar as it rejected that argument,

the Fifth Circuit’s summary affirmance of the agency’s

decision conflicts with this Court’s holdings in St. Cyr

and Hughes Aircraft Co. v. United States ex rel. Schu-

ays *

ees

mer, 520 U.S. 939 (1997), and with the Tenth Circuit’s

decision in Hem v. Maurer, 458 F.3d 1185, 1197 (2006).

The petition should be denied because the Fifth Circuit’s

decision is correct. Moreover, this case is not a suitable

vehicle for deciding the question presented because—in

light of the pre-1996 definition of “conviction”—peti-

tioner had no expectation that he was even deportable.

He therefore could not have relied on any expectation

that he would be eligible for discretionary relief from

deportation under former Section 212(c). Congres has

now clearly provided that his conviction does render him

deportable. Although petitioner has identified some

disagreement among the courts of appeals about

whether St. Cyr’s reasoning applies to aliens convicted

after a jury trial or to aliens who chose not to appeal

their convictions, petitioner’s pre-IIRIRA lack of a “con-

viction” renders that disagreement irrelevant to his

case.

a. Although its lack of explanation makes it unsuited

for this Court’s review in any event, the Fifth Circuit’s

summary affirmance of the agency’s decision is correct.

As both the BIA and the IJ noted (Pet. App. 4, 11-12),

and as petitioner concedes when he states that he ac-

cepted the withheld judgment “with the assurance that

it would not result in his deportation,” Pet. 24, when

petitioner decided whether to forgo his right to appeal,

he did not subjectively or objectively rely upon the like-

lihood that he might later receive Section 212(c) relief

from deportation. Instead, petitioner accepted the with-

held judgment and decided not to appeal because such

a judgment was not then deemed a “conviction” for im-

migration purposes and therefore did not render him de-

portable at all. Pet. 5; Pet. App. 15-17.

b. Although petitioner has identified a conflict

among the circuits about the type of reliance that is re-

quired under St. Cyr to establish a retroactive effect

(Pet. 19-23), that conflict is irrelevant to the instant

case. The cases petitioner cites to demonstrate the con-

flict discuss the repeal of Section 212(c) relief, but, as

the BIA correctly explained, that repeal had no effect on

petitioner’s decision not to appeal his sentence or the

jury’s determination that he was guilty of a crime involv-

ing moral turpitude. As petitioner himself concedes

(Pet. 24), he gave up his right to appeal not in hopes of

obtaining Section 212(c) relief from deportation, but in

hopes of avoiding a “conviction” that would render him

deportable in the first place.

c. Even if this case properly turned on whether the

elimination of Section 212(c) relief has a retroactive ef-

fect on aliens found guilty “after a jury trial” (Pet. i, 10,

13), the denial of relief would be correct. In St. Cyr, this

Court placed considerable emphasis on the fact that

“[pllea agreements involve a guid pro quo,” whereby,

“(ijn exchange for some perceived benefit, defendants

waive several of their constitutional rights (including the

right to a trial) and grant the government numerous

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

ternal quotation marks omitted). In light of “the fre-

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

years leading up to AEDPA and JIRIRA,” 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 3

instead to proceed to trial.” Jd. at 323. And because, in 3

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 possibility of

§ 212(c) relief by IIRIRA has an obvious and severe ret-

roactive effect.” Id. at 325.

-At least seven circuits have declined to extend the

holding of Sit. Cyr generally to aliens convicted after

going to trial rather than pleading guilty, precisely be-

cause this Court’s decision in St. Cyr emphasized the

showing of reliance provided by a guilty plea. See Dias

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

539 U.S. 926 (2003); Rankine v. Reno, 319 F.3d 93, 102

(2d Cir.), cert. denied, 540 U.S. 910 (2003); Mbea v. Gon-

zales, 482 F.3d 276, 281-282 (4th Cir. 2007); Hernandez-

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

nied, 127 S. Ct. 40 (2006); Lara-Ruiz v. INS, 241 F.3d

934, 945 (7th Cir. 2001); Zamora v. Gonzales, 240 Fed.

Appx. 150, 152-153 (7th Cir. 2007), cert. denied, No. 07-

820 (Apr. 21, 2008); Armendariz-Montoya v. Sonchik,

291 F.3d 1116, 1121-1122 (9th Cir. 2002), cert. denied,

539 U.S. 902 (2003); Hem, 458 F.3d at 1189 (10th Cir.

2006). See also Fernandez-Vargas v. Gonzales, 126

S. Ct. 2422, 2431-2432 (2006) (explaining St. Cyr’s ratio-

nale based on guid pro quo arrangement in guilty plea).

Only the Third Circuit has held that no showing of reli-

ance is required and that new legal consequences at-

tached by IIRIRA to an alien’s conviction were suffi-

cient to prevent the BIA from precluding Section 212(c)

relief. Atkinson v. Attorney Gen., 479 F.3d 222 (2007).'

' Petitioner (at 21) also cites the Fourth Circuit’s decision in Ola-

tunji v. Ashcroft, 387 F.3d 383 (2004). The retroactivity issue in Olo-

tunjt involved the loss of an alien’s ability to take brief trips abroad

without subjecting himself to removal proceedings, id. at 395-396,

rather than the loss of access to Section 212(c) relief. In fact, Olatunji

itself distinguished the Fourth Circuit’s prior decision in Chambers

v. Reno, 307 F.3d 284 (2002), which did involve Section 212(c). See Ola-

Especially given the great weight of authority in the

courts of appeals, an intervening development renders

review by this Court unwarranted to consider the ques-

tion whether St. Cyr’s holding applies to aliens convicted

after a jury trial. A final rule adopted by the Depart-

ment of Justice to implement St. Cyr by amending

certain provisions of Title 8 of the Code of Federal Reg-

ulations, see Section 212(c) Relief for Aliens with Cer-

tain 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

convicted at trial. In its response to comments received

on its proposed rule, the Department noted cases hold-

ing that “an alien who is convicted after trial is not eligi-

- ble for section 212(c) relief under St. Cyr,” and then

stated that it “has determined to retain the distinction

between ineligible aliens who were convicted after crimi-

nal trials[] and those convicted through plea agree-

ments.” Id. at 57,828. That determination is reflected

in the amended regulations, which took effect on Oc-

tober 28, 2004. See id. at 57,835 (8 C.F.R. 1212.3(h))

(“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 regulations in deciding whether Sz.

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 this Court should not be one

of the first to do so.

tunji, 387 F.3d at 392 (discussing Chambers, 307 F.3d at 293). 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 con-

victed after trial.” Mbea, 482 F.3d at 281.

ee eee ee ee ee ee he ee a ee ae Levee Pr Pre May Pe ee ee Ee ee OS eee eee ee eee PN ee ee ee

ty Ba ee pegeent : % 5 - : Nese ee oo : rege: z oe

d. Finally, even if this case turned on the question

whether St. Cyr should be extended to an alien who has

forgone an appeal,” review should be denied. Petitioner

identifies only one decision that has addressed that is-

sue. See Hem, 458 F.3d at 1200 n.5 (“There is no basis

for distinguishing between a decision to give up a right

to trial in favor of the possibility of immigration relief

and a decision to forego [sic] the right to appeal in favor

of such a possibility.”). In Hem, the Tenth Circuit found

that aliens who give up a right to appeal could establish

objective reliance on their Section 212(c) eligibility

based on the likelihood that the category of aliens in-

volved would have so relied. This case, however, deals

with a class of aliens who were not even “convicted” of

offenses that would render them deportable; any reli-

ance on the availability of Section 212(c) relief would not

have been objectively reasonable but rather the product

of clairvoyance about Congress’s subsequent expansion

of the definition of “conviction” and its decision to apply

that new definition to convictions entered before

IIRIRA’s date of enactment.

Because the question of reliance in the context of a

forgone appeal has been addressed only by the Tenth

Circuit, and there was understandably no discussion of

the question by the court of appeals in this case, this

case presents no occasion for this Court to address the

issue.

2. With respect to the second question presented by

the petition, petitioner argues that Congress’s applica-

tion of IIRIRA’s new definition of “conviction” to his

* Asnoted above, petitioner’s reliance argument, both in the question

presented and in much of the sections of the argument associated with

it, is directed at his being found guilty of a deportable offense “after a

jury trial.” Pet. i, 10, 13.

1994 withheld judgment violates his due process rights

because it works a “manifest injustice” by rendering him

deportable when he would not previously have been.

Pet. 24-27. The court of appeals was correct in sum-

marily affirming the agency’s decision to the contrary,

and further review is unwarranted. Congress expressly

made the revised definition of “conviction” applicable to

convictions and sentences entered before IIRIRA’s

enactment date. Moreover, petitioner cites no conflict

among the circuits regarding the issue, and this Court

has long recognized that Congress has broad authority

to make past criminal activity a new ground for deporta-

tion.

a. As this Court has previously explained: “[I]t is

beyond dispute that, within constitutional limits, Con-

gress has the power to enact laws with retrospective

effect. A statute may not be applied retroactively, how-

ever, absent a clear indication from Congress that it

intended such a result.” St. Cyr, 533 U.S. at 316 (cita-

tion omitted). As petitioner concedes, “Congress clearly

manifested its intent” that the revised definition of “con-

viction” in Section 322(a)(1) of IIRIRA would “apply

retroactively.” Pet. 24; see also Pet. 7 (“Congress * * *

expressly made the new definition of ‘conviction’ retroac-

tive.”); St. Cyr, 583 U.S. at 318-319 n.43 (including

IIRIRA § 322(a) among the “specific provisions” that

Congress “indicate[d] unambiguously its intention to

apply * * * retroactively”). Cf. Hughes Aircraft Co.,

520 U.S. at 946 (noting that the presumption against

retroactivity does not apply when “Congress has clearly

manifested its intent to the contrary”).

b. Petitioner not only fails to cite any court of ap-

peals decision finding Congress’s retroactive change to

the definition of “conviction” to be unconstitutional. His

attempt to establish that retroactive application of the

expanded definition of “conviction” works a “manifest

injustice” is also particularly unpersuasive in the immi-

gration context. This Court has repeatedly rejected

claims that new laws may not be applied to past conduct

to render an alien deportable. In Mulcahey v. Cata-

lanotte, 353 U.S. 692 (1957), the Court held that a per-

manent-resident alien was made deportable under the

1952 version of the INA as a result of a 1925 narcotics

conviction. Jd. at 692-694. The Court explained that

“Congress was legislating retrospectively, as it may do,”

when it specified in 1952 that aliens were to be depor-

table for narcotics convictions entered at a time when

such convictions would not have been a ground for de-

portation. Jd. at 694; see also Lehmann v. United

States, 353 U.S. 685, 690 (1957) (holding that an alien

was made deportable under the 1952 version of the INA

for 1936 convictions for crimes involving moral turpi-

tude); Harisiades v. Shaughnessy, 342 U.S. 580, 584-591

(1952) (rejecting due process challenge to deportation of

legally resident aliens although their Communist Party

memberships terminated before a 1940 statute made

membership a ground for deportation).

e. The cases petitioner cites (Pet. 25-26) do not sup-

port any finding of manifest injustice in this case. Most

of them refused to decide the constitutional question he

raises. In St. Cyr, this Court acknowledged that “Con-

gress has the power to enact laws with retrospective

effect,” and it did not address the “constitutional limits”

on that power. 533 U.S. at 316. In Landon v. Plasencia,

459 U.S. 21 (1982), the Court held that an alien in exelu-

sion proceedings has a right to due process, but it ex-

pressly stated that it was not deciding “the contours of

the process that is due or whether the process accorded

[the alien] was insufficient.” Jd. at 32. Moreover, Lan-

don, unlike this case, did not deal with the availability of

discretionary relief. Similarly, the Seventh Circuit's

_ decision in Jideonwo v. INS, 224 F.3d 692 (2000)—

which predated St. Cyr—recognized that courts “will not

ordinarily disturb” Congress’s express determinations

about retroactivity. Jd. at 698. Because it found that

“Congress’s intent with regard to the retroactive appli-

cation of [the statute in question there was] ambiguous,”

the Seventh Circuit applied a differént standard, asking

only whether the statute “attache[d] new legal conse-

quences to past conduct.” Ibid.

The remaining cases cited by petitioner rejected ar-

guments that retroactive application woulda violate due

process. See Usery v. Turner Elkhorn Mining Co., 428

U.S. 1, 16-20 (1976); Bradley v. School Bd., 416 U.S. 696,

721 (1974). In Bradley, the Court noted that “the pre-

cise category of eases to which [the ‘manifest injustice’]

exception applies has not been clearly delineated,” id. at

717, and petitioner cannot extract any criteria to assist

his argument here. Even so, because the “manifest in-

justice” inquiry must consider “the nature and identity

of the parties,” “the nature of their rights,” and “the

nature of the impact of the change in law upon those

rights,” 7bid., petitioner has an even greater burden to

shoulder than did the mining companies in Usery or the

school board in Bradley. Congress exercises plenary

power over immigration and naturalization, see Klein-

dienst v. Mandel, 408 U.S. 753, 766-767 (1972) (citing

cases), and, as explained above, this Court has previ-

ously sustained deportations on the basis of statutes

that made pre-enactment conduct a new ground for de-

portation.

It is not manifestly unjust to conclude that peti-

tioner—an alien who was found guilty by a jury of com-

mitting a crime involving moral turpitude but technically

had the criminal judgment against him “withheld”—can

be removed from the country and is ineligible for discre-

tionary relief from removal.

CONCLUSION

The petition for a writ of certiorari should bedenied.

Respectfully submitted.