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

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## Record

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

## Text

2

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In 1996, Congress repealed Section 212(c) of the Im-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

V
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
v.
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)

2

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

3

[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

4

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.

5

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

6

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

7

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.

8

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,”

9

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-

10

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

11

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.

12

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

18

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

14

[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.

15

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.

PAUL D. CLEMENT
Solicitor General
GREGORY G. KATSAS
Acting Assistant Attorney
Generai
ALISON R. DRUCKER
JOSEPH D. HARDY
Attorneys

May 2008

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0677%3A2. Public record. Not legal advice.