Appendix — Ferguson v. Holder

APPENDIX

TABLE OF CONTENTS

Opinion of the U.S. Court of Appeals for the

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APPENDIX

IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 08- 10806

Agency No. A35-730-532

SANDRA FERGUSON,

Petitioner,

VS.

U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the

Board of Immigration Appeals

March 31, 2009

Before BIRCH, HULL and FAY, Circuit Judges.

HULL, Circuit Judge:

This petition requires us to address a question that has

divided the other circuits and presents an issue of first

2a

impression in ours. Does IIRIRA’s' repeal of the INA’s §

212(c) waiver provision” have an impermissible retroactive

effect on aliens, like Sandra Ferguson, who were convicted of

deportabie criminal offenses before IIRIRA’s effective date?

Until April 1, 1997 (the effective date of IIRIRA’s repeal

of § 212(c)), Ferguson was eligible to appiy for a § 212(c)

deportation waiver. But the INS initiated removal proceedings

in 1998—over a year after § 212(c) was repealed. Despite its

repeal, Ferguson maintains that IIRIRA has an impermissible

retroactive effect and does not bar her from applying for §

212(c) relief. The question in Ferguson’s petition is whether

she can take advantage of the now-repealed § 212(c).

The Supreme Court has addressed this question before.

See INS v. St. Cyr, 533 U.S. 289 (2001). It said that because a

plea agreement “involves a quid pro quo between a criminal

defendant and the government,” id. at 321, aliens who pled

guilty to a deportable offense “almost certainly relied” on the

availability of § 212(c) relief in deciding to plead guilty and

forgo their right to trial, id. at 325. Therefore, the repeal of §

212(c) has an impermissible retroactive effect on such aliens,

and they remain eligible for § 212(c) relief. Jd.

But Ferguson did not plead guilty. She was convicted by

a jury. And therein lies her dilemma.

After determining that we have jurisdiction to hear the

petition, we conclude that I[RIRA’s repeal of § 212(c) does

not have an impermissible retroactive effect on Ferguson.

' The Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (“ITRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-597.

? The Immigration and Nationality Act (“INA”), § 212(c), 8 U.S.C.

§ 1182(c).

3a

I. FACTUAL BACKGROUND

Petitioner Sandra Ferguson emigrated from Jamaica to

the United States, and on August 4, 1977, she was admitted as

a lawful permanent resident. Although her residence was

lawful, her subsequent behavior was not. On November 20,

1985, the State’s Attorney of Cook County, Illinois charged

her with possessing and intending to distribute 30 grams of

cocaine. See Ill. Rev. Stat. Ch. 56.5 § 1401- A(2) (1983).°

On July 7, 1986, following a tral in the Circuit Court of

Cook County, the jury convicted Ferguson. On September 9,

1986, the circuit court sentenced Ferguson to six years in

prison. But she served only two years and nine months.

About ten years later, on July 5, 1998, the INS‘ served

Ferguson with a Notice to Appear charging her with

removability under INA § 237(a)(2)(B)(Qi), 8 U.S.C. §

1227(a)(2)(B)(i), for committing a controlled substances

offense. On May 18, 1999, before the Immigration Judge

(“IJ”), Ferguson admitted this charge in the Notice to

Appear.” But she denied that she was removable.

* The Illinois indictment contained the above citation. It appears to

be consistent with the following citation: Ill. Comp. Stat., Ch. 56.5 §

1401(a)(2) (West 1988).

“On March 1, 2003, the INS ceased to exist. Its functions, now

housed in the Department of Homeland Security (“DHS”), are divided

principally among three agencies: U.S. Immigrations and Customs

Enforcement, U.S. Customs and Border Protection, and U.S. Citizenship

and Immigration Services.

* The INS also charged Ferguson with removability for committing

an aggravated felony. See INA § 237(a)(2XA)(iii), 8 USC. §

1227(aX2MAPiii); INA § 101(aX43)(), 8 U.S.C. § 1101({aX43\(f.

Ferguson denied that she committed an aggravated felony, and the [INS

subsequently withdrew the claim as it pertained to her removability

charge. But, as we explain below, the [INS (and later the DHS) maintained

that her controlled substances offense qualified as an aggravated felony

4a

The [J found Ferguson removable, pursuant to INA §

237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B\(i), based on her

admissions and the evidence of her felony drug conviction.

The UJ found that “the nature of her conviction” made her

ineligible for cancellation of removal under INA § 240(a), 8

U.S.C. § 1229b.° The LJ ordered her removed to Jamaica.

Ferguson appealed to the Board of Immigration Appeals

(“BIA”). Ferguson argued that she was eligible for

cancellation of removal under § 240(a) because, at the time of

her conviction in 1986, her crime was not considered an

“aggravated felony” under immigration law. The BIA rejected

her § 240(a) argument. But it remanded, in light of JNS v. St.

Cyr, 533 U.S. 289 (2001), to determine whether Ferguson

might be eligible for discretionary relief from the Attorney

for purposes of determining whether Ferguson was eligibie for

cancellation of removal. See footnote 6 infra.

® An alien “convicted of any aggravated felony” is ineligible for

cancellation of removal. 8 U.S.C. § 1229b(a)(3). See Chuang v. U.S. Att'y

Gen., 382 F.3d 1299, 1303 (11th Cir. 2004) (“IIRIRA§ 304(b) repealed

INA § 212(c) and replaced it with a more restrictive provision in INA §

240(a) called ‘cancellation of removal.’ See 8 U.S.C. § |229b. .. . § 304

of IIRIRA provided that cancellation of removal was not available to an

alien convicted of any aggravated felony.” (citation and quotation marks

omitted)); Mohammed v. Ashcroft, 261 F.3d 1244, 1248 n3 (11th Cir.

2001) (“Status as an ‘aggravated felon’ renders an alien ineligible for

discretionary relief—called cancellation of removal—under 8 U.S.C. §

1229b.”). The INA defines an “aggravated felony” as including a “drug

trafficking crime (as defined in section 924(c) of Title 18).” INA §

101(a)(43)(B), 8 U.S.C. § 1101(a)(43)\B). “[T]he term ‘drug trafficking

crime’ means any felony punishable under the Controlled Substances Act

[(“CSA”)] (21 U.S.C. 801 ef seg.). . . .” 18 U.S.C. § 924(c)(2). And the

CSA, in turn, defines a “felony” as an offense for which “the maximum

term of imprisonment authorized” exceeds one year. 18 U.S.C. § 3559(a).

That arduous maze of statutory interpretation all means that

Ferguson was not entitled to cancellation of removal because her felony

drug crime, for which she was sentenced to five years in prison,

constituted an “aggravated felony.”

5a

General under INA § 240(a)’s predecessor—the now-repealed

INA § 212(c), 8 U.S.C. § 1182(c).

Because the record was ambiguous as to whether

Ferguson was convicted at trial or pled guilty, the BIA

remanded to the IJ to figure it out. At an evidentiary hearing

before the JJ, Ferguson admitted that she was convicted at

tal. But she argued that she was still eligible for a

deportation waiver because, at the time Congress repealed §

212(c) in 1996, she was still eligible to apply for such relief.

In other words, she argued that the repeal of § 212(c) does not

apply retroactively to those who were eligible to apply for

such relief before the date of repeai.’

The LJ found that she was convicted at trial. Therefore,

the IJ again determined that she was ineligible for 2 § 212(c)

waiver and reinstated the removal order. Ferguson again

appealed to the BIA and challenged the IJ’s ruling on § 212(c)

availability. Her appeal raised the same arguments that she

made before the J.

” Ferguson further argued that, pursuant to Cunningham v. U.S. Att'y

Gen., 335 F.3d 1262, 1267 (1 1th Cir. 2003), she was eligible for § 212(c)

relief because the INS served her with an Order to Show Cause (the

precursor to the Notice to Appear) while she was still in prison in 1986

(and before Congress repealed § 212(c)). The [J rejected Ferguson’s

Cunningham argument because she had no documentation to support her

assertion that the INS began deportation proceedings prior to the repeal of

§ 212(c).

The BIA affirmed. It determined that Ferguson had no proof that the

INS served her with an Order to Show Cause in 1986. Here, Ferguson

does not dispute the BIA’s rejection of her claim as unsubstantiated by

any evidence. Rather, Ferguson focuses her petition on whether § 212(c)

applies to aliens who were convicted at trial prior to the date of § 212(c)’s

repeal. Thus, Ferguson has abaridoned her claim that she was served in

1986. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th

Cir. 2004) (“[T]he law is by now well settled in this Circuit that a legal

claim or argument that has not been briefed before the court is deemed

abandoned and its merits will not be addressed.”’).

6a

The BIA affirmed the IJ’s decision “tn its entirety.” The

BIA rejected Ferguson’s § 212(c) argument. It determined

that a federal regulation made Ferguson ineligible. The BIA

pointed to 8C.F.R. § 1212.3(f(4) as support for its

conclusion that only individuals who pled guilty prior to the

change in the law are eligible for § 212(c) relief.® The BIA

based its ruling on the “clear language” of the federal

regulation and the absence of any Eleventh Circuit authority

extending St. Cyr to trial-based convictions as opposed to

guilty pleas.

Ferguson filed a petition for review with this Court. The

petition requires us to answer two questions. First, do we

have jurisdiction to hear Ferguson’s challenge to the BIA’s

pretermition of her application for a § 212(c) deporiation

waiver? Second, does IIRIRA’s repeal of § 212(c) relief have

an impermissible retroactive effect on aliens, like Ferguson,

who were convicted of deportable criminal offenses by a jury

prior to IIRIRA’s effective date?

®8 C.F.R. 1212.3(f) provides, in part:

(4) The alien has been charged and found to be deportable or

removable on the basis of a crime that is an aggravated felony, as defined

in section 101(a)(43) of the Act (as in effect at the time the application for

section 212(c) relief is adjudicated), except as follows:

(i) An alien whose convictions for one or more aggravated felonies

were entered pursuant to plea agreements made on or after November 29,

1990, but prior to April 24, 1996, is ineligible for section 212(c) relief

only if he or she has served a term of imprisonment of five years or more

for such aggravated felony or felonies, and

(ii) An alien is not ineligible for section 212(c) relief on account of

an aggravated felony conviction entered pursuant to a plea agreement that

was made before November 29, 1990; or

(5) The alien is deportable under former section 241 of the Act or

removable under section 237 of the Act on a ground which does not have

a statutory counterpart in section 212 of the Act.

7a

II. JURISDICTION

This Court’s jurisdiction to review Ferguson’s removal

order is limited. Congress has divested courts of “jurisdiction

to review any final order of removal against an alien who is

removable by reason of having committed,” among other

things, a controlled substances offense. See INA §

242(a)(2K(C), 8 U.S.C. § 1252(a)(2K(C) (“[N]o court shall

have jurisdiction to review any final order of removal against

an alien who is removable by reason of having committed a

criminal offense covered in_ section 1182(a)(2) or

1227(a)(2)(A)(iii), (B), (C), or (D) of this title.”).” And

Ferguson does not contest that she is removable under INA ’§

237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(A)(iii). But we retain

jurisdiction to review “constitutional claims or questions of

law raised upon a petition for review.” INA § 242(a)(2)(D), 8

U.S.C. § 1252(a)(2)(D); see Alvarez Acosta v. U.S. Att'y Gen.,

524 F.3d 1191, 1195-96 (11th Cir. 2008); Alexandre v. U.S.

Att'y Gen., 452 F.3d 1204, 1206 (11th Cir. 2006) (exercising

jurisdiction under § 1252(a)(2)(D) to review petitioner’s legal

argument as to eligibility for relief under § 212(c)); Balogun

v. U.S. Att'y Gen., 425 F.3d 1356, 1360 (11th Cir. 2605)

(discussing legislative history of § 1252(a)(2)(D)).

Here, Ferguson raises a pure question of law. That is, she

argues that I[RIRA’s repeal of § 212(c) has an impermissible

retroactive effect on aliens like herself. She asks us to extend

the holding of JNS v. St. Cyr, 533 U.S. 289, 326 (2001), to

? Section 1182(aX2)(A)(i)(IIT) includes a crime that involves “a

violation of... any law ofa State . . . relating to a controlled substance.”

Section 1227(B)i) includes “a violation of. . . any law or regulation of a

State, the United States, or a foreign country relating to a controlled

substance.” Under § 1252(a)(2)(C), our jurisdiction is limited to

determining whether a petitioner is an (1) alien (2) who is removable (3)

for a disqualifying offense. Moore v. Ashcroft, 251 F.3d 919, 922-23 (11th

Cir. 2001).

8a

aliens convicted after a trial. /d. (holding “that § Z212(c) relief

remains available to aliens . . . whose convictions were

obtained through plea agreements and who, notwithstanding

those convictions, would have been eligible for § 212(c) relief

at the time of their plea under the law then in effect’).

This is not the first time that we have been presented

with a similar legal issue. But the last time we were, a

jurisdictional bar stood in our way. In Brooks v. Ashcroft, 283

F.3d 1268, 1274-75 (11th Cir. 2002), this Court concluded

that we lacked jurisdiction to review “the purely statutory

question” of whether AEDPA "° and IIRIRA applied

retroactively to bar the petitioner’s eligibility for § 212(c)

relief. Subsequently, Congress enacted 8 U.S.C. §

1252(aX{2)(D), which removes that jurisdictional bar and

supersedes the jurisdictional part of Brooks. See the Real ID

Act, Pub. L. No. 109-13, 119 Stat. 231 (2005) (authorizing

judicial review of “questions of law”). Furthermore,

Ferguson’s petition does not question the LJ or the BIA’s

exercise of discretion. Rather, she challenges the BIA’s

interpretation of St. Cyr. We therefore have jurisdiction to

address the pure question of law raised by Ferguson’s

petition.

Il. ST. CYR AND IMPERMISSIBLE

RETROACTIVITY

The outcome of this case turns largely on our

interpretation of the Supreme Court’s decision in St. Cyr.

Therefore, we begin by recounting St. Cyr. Because the

circuit courts are divided on this issue, we examine their

approaches as well. We then examine what we have said,

albeit in dicta, about St Cyr. Lastly, we apply the law to

Ferguson.

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

Pub. L. No. 104-132, § 440(d), 110 Stat. 1214 (1996).

9a

A. INS v. St. Cyr

INS v. St. Cyr addressed the way that two statutory

amendments to the INA—namely, AEDPA and IIRIRA— .

impacted § 212(c), 8 U.S.C. § 1182(c).'' Before AEDPA and

IIRIRA, § 212(c) authorized the Attorney General, in her

discretion, to waive an alien’s deportation if the alien was a

lawful permanent resident who had lived in the United States

continuously for seven years. INA § 212(c), 8 U.S.C. §

1182(c).'* Congress first began tinkering with § 212(c) relief

with the Immigration Act of 1990. See Pub. L. No. 101-649, §

Sil(a), 104 Stat. 4978, 5052 (IMMACT-90). That Act

' INA § 212(c) states:

Aliens lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of deportation, and

who are returning to a lawful unrelinquished domicile of seven

consecutive years, may be admitted in the discretion of the Attorney

General. . . . Nothing contained in this subsection shall limit the authority

of the Attomey General to exercise the discretion vested in him under

section |181(b) of this title. The first sentence of this subsection shall not

apply to an alien who has been convicted of one or more aggravated

felonies and has served for such felony or felonies a term of imprisonment

of at least 5 years.

INA § 212(c), 8 U.S.C. § 1182(c).

_ Although § 212(c), as written, applies only to excludable aliens

(as opposed to deportable aliens), courts and the BIA have interpreted it to

authorize any permanent resident alien with a lawful unrelinquished

domicile of seven consecutive years to apply for a discretionary waiver

from deportation if the basis of the removal has a statutory counterpart in

exclusion under § 212(a). See Farquharson v. U.S. Att'y Gen., 246 F.3d

1317, 1324-25 (11th Cir. 2001); Yeung v. INS, 76 F.3d 337, 338-41 (11th

Cir. 1995); Rodriguez-Padron v. INS, 13 F.3d 1455, 1457-59 (11th Cir.

1994). Thus, to be eligible for § 212(c) relief, Ferguson must show that

the basis for removal—a controlled substance offense -has a comparable

statutory basis for exclusion under § 212(a). See Farquharson, 246 F.3d at

1324-25; Yeung, 76 F.3d at 338-41; Rodriguez-Padron, |13 F.3d at 1457-

59; see also 8 CFR § 1212.3(f)(S). The INS does not dispute that

Ferguson has done that.

10a

“amended § 212(c) to preclude from discretionary relief

anyone convicted of an aggravated felony who had served a

term of imprisonment of at least five years.” St. Cyr, 533 U.S.

at 297. |

In 1996, Congress amended § 212(c) two more times.

See Chuang v. U.S. Att'y Gen., 382 F.3d 1299, 1302-03 (11th

Cir. 2004) (summarizing impact of AEDPA and IIRIRA on §

212(c)). First, it passed AEDPA. Section 440(d) of that statute

bars § 212(c) relief for aliens who committed a broad set of

offenses, including a controlled substances offense. See 110

Stat. 1277 (amending 8 U.S.C. § 1182(c)). And in September

of 1996, IIRIRA repealed § 212(c) relief altogether. See §

304(b), 110 Stat. 3009-597. In its place, Congress created a

“cancellation of removal” procedure. St. Cyr, 533 U.S. at 297

(citing IIRIRA § 304(b), 110 Stat. 3009-594) (codified at 8

U.S.C. § 1229b).'? DRIRA § 304(b) stripped the Attorney

General’s authority to waive deportation, now called removal,

for any alien convicted of an “aggravated felony.” /d.

St. Cyr addressed whether an alien who was convicted of

a deportable offense was still eligible for § 212(c) relief

where (1) he was convicted of an aggravated felony in March

of 1996, (2) deportation proceedings did not begin until April

10, 1997 (after both IIRIRA and AEDPA went into effect),

and (3) he was otuerwise eligible to apply for § 212(c) relief

'? 8 U.S.C. § '229b(a)’s “cancellation of removal” provision

provides:

The Attorney General may cancel removal in the case of an alien

who is inadmissible or deportable from the United States if the alien—

(1) has been an alien lawfully admitted for permanent residence for

not less than 5 years,

(2) has resided in the United States continuously for 7 years after

having been admitted in any status, and

(3) has not been convicted of any aggravated felony.

lla

but for the retroactive application of IIRIRA and AEDPA. 533

U.S. at 315. Put differently, the question was whether

IIRIRA’s repeal of § 212(c) relief had an impermissible

retroactive effect on aliens whose convictions were obtained

through guilty pleas, notwithstanding the fact that they were

eligible for § 212(c) relief at the time they pled guilty.

The Supreme Court said yes. Drawing on Landgraf v.

USI Film Products, 511 U.S. 244 (1994), the Supreme Court

held that IIRIRA had an impermissible retroactive effect on

aliens “whose convictions were obtained through plea

agreements and who, notwithstanding those convictions,

would have been eligible for § 212(c) relief at the time of

their plea under the law then in effect.” St. Cyr, 533 U.S. at

326.

The Supreme Court first explained that “[rjetroactive

Statutes raise special concerns.” /d. at 315. it reasoned that the

“presumption against retroactive legislation is deeply rooted

in our jurisprudence” and “embodies a legal doctrine

centuries older than our Republic.” Jd. at 316 (quotation

marks omitted). And it warmed that retroactive legislation has

the power to “sweep away settled expectations suddenly and

without individual consideration” and raises the specter that

Congress “may be tempted to use retroactive legislation as a

means of retribution against unpopular groups. or

individuals.” /d. at 315. Although Congress has the power to

enact laws with retroactive effect, Congress must clearly

indicate that it intended such a result. /d. at 316. Accordingly,

“congressional enactments . . . will not be construed to have

retroactive effect unless their language requires this result.’”

Id. at 315-16 (omission in original) (quoting Bowen vy.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)).

Therefore, the first step in the impermissible-retroactive-

effect determination is to ascertain whether Congress has

directed with the requisite clamty that the law be applied

retrospectively. /d. at 316. The Supreme Court held that

IIRIRA failed that test. /d. at 319-20. But the absence of clear

12a

intent did not end the Supreme Court’s Landgraf analysis.

Rather, the Supreme Court instructed that even if

Congress has not spoken clearly, courts must proceed to a

second step to determine whether depriving removable aliens

of consideration for § 212(c) relief produced an

“impermissible retroactive effect” for aliens convicted

pursuant to a guilty plea. /d at 320. This second inquiry into

whether a statute operates retroactively requires courts to

make a “commonsense, functional judgment about whether

the new provision attaches new legal consequences to events

completed before its enactment.” Jd. at 321 (quotation marks

and citation omitted). “A statute has retroactive effect when it

takes away or impairs vested rights acquired under existing

laws, or creates a new obligation, imposes a new duty, or

attaches a new disability, in respect to transactions or

considerations already past.” Id. (quotation marks and

citations omitted) (emphasis added). The Supreme Court did

not stop there. It added that “the judgment whether a

particular statute acts retroactively ‘should be informed and

guided by “familiar considerations of fair notice, reasonable

reliance, and settled expectations.”’” /d. (quoting Martin v.

Hadix, 527 U.S. 343, 358 (1999) (quoting Landgraf, 511 U.S.

at 270)) (emphasis added).

Applying this framework to those who “entered into plea

agreements with the expectation that they would be eligible

for [§ 212(c)] relief,” the Supreme Court in Sf. Cyr first

determined that I[RIRA’s repeal of “any possibility of §

212(c) relief. . . clearly attaches a new disability, in respect to

transactions or considerations already past.’”’ /d. (quotations

marks and citations omitted). To demonstrate a new disability

to a past transaction or consideration, the Supreme Court

explained that aliens reasonably rely on the possibility of

obtaining § 212(c) relief in considering whether to waive

their right to trial and plead guilty:

Plea agreements involve a quid pro quo

between a criminal defendant and _ the

l3a

government. In 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, such as promptly imposed

punishment without the expenditure of

prosecutorial resources. There can be little

doubt that, as a general matter, alien

defendants considering whether to enter into a

plea agreement are acutely aware of the

immigration consequences of their

convictions. Given the frequency with which §

212(c) relief was granted in the years leading

up to AEDPA and IIRIRA, preserving the

possibility of such relief would have been one

of the principal benefits sought by defendants

deciding whether to accept a plea offer or

instead to proceed to trial.

Id. at 321-22 (quotation marks and citations omitted).

The key “transaction” or “consideration already past” was the

alien’s decision to abandon his constitutional right to trial and

plead guilty in reliance on the old § 212(c). /d at 325.

“Because respondent, and other aliens like him, almost

certainly relied upon that likelihood in deciding whether to

forgo their right to a trial, the elimination of any possibility of

§ 212(c) relief by ITRIRA has an obvious and severe

retroactive effect.” Jd.

Accordingly, the Supreme Court held that Ҥ 212(c)

relief remains available for aliens, like respondent, whose

convictions were obtained through plea agreements and who,

notwithstanding those convictions, would have been eligible

for § 212(c) relief at the time of their plea under the law then

in effect.” Jd. at 326. The Supreme Court did not directly

address whether an alien who pled guilty had to show

individualized reliance on } 212(c) in entering a guilty plea or

whether the class of aliens who pled guilty reasonably relied

14a

on § 212(c). But the tenor of St. Cyr as a whole appears to

treat aliens who pled guilty before IIRIRA as a group of

similarly-situated applicants eligible for such relief. Jd. at 322

(“There can be little doubt that, as a general matter, alien

defendants considering whether to enter into a plea agreement

are acutely aware of the immigration consequences of their

convictions.”); id. at 325-26 (concluding that St. Cyr “and

other aliens like him” remain eligible for § 212(c) relief); id.

at 325 (“Because respondent, and other aliens like him,

almost certainly relied upon that likelihood in deciding

whether to forego their right to a trial... .”); id. at 323

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

in the years leading up to AEDPA and IIRIRA, 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.”).'* As noted earlier,

Ferguson did not plead guilty, and she asks us to extend Sv.

Cyr outside of the guilty plea context.

'* See Wilson v. Gonzales, 471 F.3d 11, 119 (2d Cir. 2006)

(discussing St. Cyr and concluding the Supreme Court endorsed the

. Stegorical presumption that it would be impermissible to apply the repeal

of § 212 retroactively to the category of aliens who pled guilty before

URIRA); Thagi v. Jenifer, 377 F.3d 500, 504 n.2 (6th Cir. 2004) (noting

that “under St. Cyr, the petitioner need not demonstrate actual reliance

upon the immigration laws in order to demonstrate an impermissible

retroactive effect; he need only be among a class of aliens whose guilty

pleas ‘were likely facilitated’ by their continued eligibility for § 212(c)

relief”); see also Garcia-Echaverria v. United States, 376 F.3d 507, 515

(6th Cir. 2004) (stating in dicta that “St. Cyr aids only those aliens whose

convictions were obtained through plea agreements and who,

notwithstanding those convictions, would have been eligible for

[discretionary cancellation of removal] at the time of their plea under the

law then in effect” (quotation marks and emphasis omitted) (alteration in

original)).

lSa

B. Other Circuits’ Approaches

The circuits are split on how to apply S¢. Cyr to aliens

outside of the guilty plea context.

The majority of circuits to address the issue have held

that IIRIRA does not have an impermissible retroactive effect

on aliens who relied on § 212(c) relief in deciding to go to

trial. See Hernandez-Castillo v. Moore, 436 F.3d 516, 520

(Sth Cir. 2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1036-

37 (7th Cir. 2004); Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.

2003); Chambers v. Reno, 307 F.3d 284, 290-93 (4th Cir.

2002); Dias v. INS, 311 F.3d 456, 458 (lst Cir. 2002)

(“[A]pplication of the new statutory limitations on

discretionary relief does not have an_ impermissible

retroactive effect on those aliens who would have been

eligible for discretionary relief when they were convicted of a

felony after trial.”); see also Saravia-Paguada v. Gonzales,

488 F.3d 1122, 1131 (9th Cir. 2007), cert. denied, 128 S. Ct.

2499 (2008) (indicating that, “[iJn our circuit, we have

generally limited St. Cyr to the factual context of a guilty

plea,” and “[ojutside of the plea bargain context . . . we have

declined to invalidate retroactive elimination of § 212(c)

relief’); Armendariz-Montoya v. Sonchik, 291 F.3d 1116,

1121 (9th Cir. 2002) (stating that unlike aliens who pled

guilty, “aliens who elected a jury trial cannot plausibly claim

that they would have acted any differently if they had known

about [AEDPA’s] § 440(d)”).'

“[Ajliens who chose to go to trial are in a different

position with respect to [IIRIRA than aliens like St. Cyr who

chose to plead guilty’’ because “‘none of [them] detrimentally

'S In Saravia-Paguada, the Ninth Circuit interpreted Armendariz-

Montoya as classifying reliance on § 212(c) when an alien goes to trial as

“per se unreasonable,” and emphasized that the decision “reaffirmed a

narrow reading of St. Cyr and excluded categorically claims for § 212(c)

relief outside the guilty plea context.” 488 F.3d at 1131.

16a

changed his position in reliance on continued eligibility for §

212(c) relief.” Rankine, 319 F.3d at 99. Such aliens “have

pointed to no conduct on their part that reflects an intention to

preserve their eligibility for relief under § 212(c) by going to

trial.” Jd. at 100; Hernandez-Castillo, 436 F.3d at 520

(quoting Rankine); ‘© Chambers, 307 F.3d at 291 (“{I]n

contrast to aliens who plead guilty, Chambers [in proceeding

to trial} made no decision that adversely impacted his

immigration status.”’). “As the [Supreme] Court made clear, it

was that reliance, and the consequent change of immigration

status, that produced the impermissible retroactive effect of

IIRIRA.” Rankine, 319 F.3d at 100; see Chambers, 307 F.3d

at 290 (“The key event in terms of St. Cyr’ analysis . . . was

the alien’s decision to abandon his constitutional mght to a

trial and plead guilty to a deportable offense in reliance on

prior law.”); Montenegro, 355 F.3d at 1037 (“But this

exception does not apply to aliens like Montenegro who

chose to go to trial; such aliens did not abandon any rights or

admit guilt in reliance on continued eligibility for § 212(c)

relief.””);'’ Mbea v. Gonzales, 482 F.3d 276, 281 (4th Cir.

'© Indeed, aliens who choose to go to trial do not do so in reliance on

the availability of § 212(c) relief. They do so to fight their criminal

charges. Raniine, 319 F.3d at 99-100 (noting that St. Cyr's rationale does

not extend to such a “hollow” claim); see also Domond v. INS, 244 F.3d

81, 86 (2d Cir. 2001) (“[I]}t cannot reasonably be argued that aliens

committed crimes in reliance on a hearing that might possibly waive their

deportation.”); Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001) (“[IJt

would border on the absurd to argue that an alien would refrain from

committing crimes or would contest criminal charges more vigorously if

he knew that after he had been imprisoned and deported, a discretionary

waiver of deportation would no longer be available to him. Thus, Lara-

Ruiz cannot seriously maintain that the application of any rule barring

discretionary relief from removal or deportation would upset his settled

expectations sufficiently to trigger the presumption against retroactivity.”)

(quotation marks and citation omitted).

'7 Under the the Seventh Circuit's approach, even though St. Cyr

protects aliens who pled guilty, they must still demcnstrate that they

17a

2007) (“We held that IIRIRA's repeal of § 212(c) did not

produce an impermissibly retroactive effect as applied to an

alien convicted after trial.”).'®

As noted, the Second Circuit has expressly refused to

extend St. Cyr to aliens who proceeded to trial. Rankine, 319

F.3d at 102 (“Because we have not found a persuasive

argument that the holding in St. Cyr can be extended to cover

those aliens who were convicted at trial rather than pursuant

to a plea, we conclude that the repeal of § 212(c) relief does

not have an impermissibly retroactive effect when applied to

petitioners.”); Chambers, 307 F.3d at 290-93. Subsequently,

in Restrepo v. McElroy, 369 F.3d 627, 634 (2d Cir. 2004), the

Second Circuit “fine-tuned its St. Cyr-Rankine jurisprudence”

and “held that under certain limited circumstances, an alien-

defendant who was convicted pursuant to a jury tral prior to

the enactment of AEDPA could still potentially be eligible for

§ 212(c) relief.” See Wilson v. Gonzales, 471 F.3d 111, 120

(2d Cir. 2006). In Restrepo, the Second Circuit concluded that

actually relied on the availability of § 212(c) in deciding to plead guilty.

United ‘tates v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir.), cert.

denied, 129 S. Ct. 489 (2008).

'® In another line of authority, the Fourth Circuit seems to reject

actual reliance as a necessary component of the retroactivity analysis. See

Olatunji v. Ashcroft, 387 F.3d 383, 392 (4th Cir. 2004) (“[FJar from

holding that reliance is the sine qua non of retroactivity, both Chambers

and Velasquez-Gabriel said precisely the opposite, that even aliens who

have not detrimentally relied on pre-[[RIRA law can sustain a claim thai

IIRIRA is impermissibly retroactive.” (emphasis omitted)). But the impact

of Olatunji is unclear as it did not involve § 212(c), but rather the

retroactive application of a different IIRIRA provision (that rendered

Olatunji “inadmissible” pursuant to a conviction). Id. at 386. As the Tenth

Circuit noted, “there is tension between Olatunji and Chambers, but [we]

observe that they construe different provisions of the INA. .. . This broad

repudiation of reliance is potentially in conflict with the reasoning of

Chambers, which gives reliance a central role in its analysis.” Hem v.

Maurer, 458 F.3d 1185, 1192 n.4 (10th Cir. 2006).

18a

an alien may show detrimental reliance when he decides to

“forgo the immediate filing of a 212(c) application based on

the considered and reasonable expectation that he would be

permitted to file a stronger application for 212(c) relief at a

later time.” 369 F.3d at 634-35. The Second Circuit noted that

the

undermining of this . settled expectation

represents a prototypical case of retroactivity.

Just like the aliens in St. Cyr, who sacrificed

something of value—their right to a jury trial,

at which they could obtain outright acquittal—

in the expectation that their guilty pleas would

leave them eligible for 212(c) relief, an alien

like Petitioner also sacrificed something—the

shot at obtaining 212(c) relief by immediately

filing an application—in order to increase his

chances of obtaining such relief later on. Such

an alien conformed his or her conduct

according to the availability of relief, and

therefore had settled expectations that would

be severely upset, were the AEDPA to be

applied retroactively.

Id. (quotation marks, citations, and foctnote omitted). In other

words, aliens in the Second Circuit can prove detrimental

reliance, under the St. Cyr framework, by showing that they

affirmatively chose to forego filing their § 212(c) application

for discretionary relief in order to build up a better record and

boost the odds that their applications would be granted. /d. In

Restrepo, the Second Circuit remanded for the district court

to determine in the first instance: (1) whether Restrepo must

make an individualized showing of reliance instead of reaping

the benefit of a categorical presumption of reliance; and (2) if

so, whether Restrepo could make that showing. /d. at 638-39.

Since Restrepo, the Second Circuit has required an

“individualized showing of reliance” to prove such claims.

Wilson, 471 F.3d at 122. “Merely knowing of the continued

19a

availability of § 212(c) relief is not the equivalent to

affirm ative reliance in its continued availability.” /d.

The Fifth Circuit follows the Restrepo approach. See

Carranza-De Salinas v. Gonzales, 477 F.3d 200, 208-09 (Sth

Cir. 2007) (“We find the reasoning of the Restrepo Court

persuasive and see no need to create a circuit split on this

issue.”). But outside of the guilty plea context, the Fifth

Circuit, like the Second, requires a showing of individualized

reliance as opposed to a categorical presumption of reliance.

Id. at 205 (“After Hernandez-Castillo, this circuit requires an

applicant who alleges continued eligibility for § 212(c) relief

to demonstrate actual, subjective reliance on the pre-IIRIRA

state of the law to be eligible for relief from its retroactive

application.”). Under this approach, “[bJecause the reliance

demonstrated must be actual, the determination of retroactive

effect is made as to the individual applicant, not as to a group

of similarly-situated applicants.” /d.

The Tenth Circuit extends St. Cyr beyond the guilty plea

contex* and rejects a requirement of actual, subjective

reliance. See Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir.

2006). In Hem, the Tenth Circuit found that an alien shows

objectively reasonable reliance on § 212(c) relief where she

gives up her right to appeai her criminal conviction.'? /d. But

its approach is not limited to those who gave up their appeals.

[ts general approach is to determine “whether the class of

persons affected by retroactive application of a statute had an

'? Under Hem, an alien does not show objective reliance by simply

foregoing the right to appeal. Rather, the alien must also show that a

successful appeal would have placed him “at risk of being sentenced to a

sentence longer than 5 years . . . making him ineligible for § 212(c)

relief.” Hem, 458 F.3d at 1199. Indeed, Hem was sentenced to three years.

Therefore, resentencing carried the nsk of a sentence longer than five

years, which would have shut the door on his hopes of § 2! 2(c) relief. See

footnote 22 infra (explaining IMMACT-90's five year bar).

20a

objectively reasonable interest in the previous state of the

law.” Id. at 1200. “Aliens, like Hem, who were in a position

in which the availability of § 212(c) relief would reasonably

inform their decision to forego a constitutional right, would

suffer ‘new legal consequences to events completed before

[the statute's}, enactment,’ Landgraf, 511 U.S. at 269-70,

under IIRIRA § 304(b).” /d. at 1200-01.7° Therefore, such

aliens are eligible for § 212(c) relief.

The Third Circuit, on the other hand, does not require

aliens to show reliance or a reliance interest—either objective

or subjective—on § 212(c) relief and has concluded that

IIRIRA’s repeal of § 212(c) is impermissibly retroactive in

that it attaches new legal consequences to an alien’s criminal

conviction. See Atkinson v. Att'y Gen., 479 F.3d 222, 231 (3d

Cir. 2007). Because the Third Circuit’s approach substantially

differs from that of the other circuits, and because Ferguson

urges us to adopt it, we discuss it in some detail. In the Third

Circuit’s view, the Supreme “‘ourt “has never held that

reliance on the prior law is an ¢!ement required to make the

determination that a statute may oe applied retroactively.” Jd.

at 227-28. “[R]eliance is but one consideration in assessing

0 In Hem, the question was whether “[al]liens, like Hem, who were

in a position in which the availability of § 212(c) relief would reasonably

inform their decision to forego a constitutional right, would suffer new

legal consequences to events completed before the statute's enactment

under ITRIRA § 304(b).” Hem, 458 F.3d at 1200-01. The petitioner in

Hem was able to prove that she was part of a class of “[a]liens who gave

up their right to appeal their aggravated felony conviction when a

successful appeal could have deprived them of § 212(c) eligibility.” Jd. at

1199; see id. at 1200 (“When a defendant, like Hem, proceeds to trial, is

convicted, chooses not to pursue an appeal when that appeal could result

in the loss of § 212(c) relief, and subsequently loses the availability of §

212(c) relief following the Attomey General’s decision to apply IIRIRA §

304(b) retroactively, his right to appeal has been retroactively impaired.”).

And, therefore, the Tenth Circuit held that Hem was still eligible for §

212(c) relief.

2la

whether a statute attaches new legal consequences to past

events.” /d. at 231. The Third Circuit reads Supreme Court

precedent not as requiring that the alten must have relied on

the old § 212(c), but rather as undertaking a “general analysis

of the impact of the amendment, finding retroactivity

improper because the amendment instituted a legal change

that attached a new legal burden to the proscribed conduct.”

Id. at 228. “Impermissible retroactivity, as defined in

Landgraf, does not require that those affected by the' change

in law have relied on the prior state of the law.” Jd. at 229.

Therefore, based on its interpretation of St. Cyr and

Landgraf, the Third Circuit phrased the relevant question as

only: “Does applying IIRIRA to eliminate the availability of

discretionary relief under former section 212(c) attach new

legal consequences to events completed before the repeal?”

Id. at 230. It answered that question by using Atkinson’s

conviction as the event completed, noting that

Atkinson’s case presents a_ straightforward

application of the retroactive effect test.

IIRIRA has plainly attached new legal

consequences to Atkinson’s conviction. Prior

to IIRIRA’s enactment, Atkinson remained free

to apply for a waiver under section 212(c)

despite his conviction of an aggravated felony.

After [IRIRA, he lost that right; applying basic

principles of retroactivity, IIRIRA attached 2

new legal consequence to Atkinson’s

conviction: the certainty-rather than the

possibility-of deportation. Such a change in

legal consequences based on events completed

before IIRIRA’s enactment constitutes an

impermissible retroactive effeci.

22a

Id. (citation omitted).”' While the law of the circuits is

not uniform, none of the other circuits has adopted the Third

Circuit’s approach.

C. Ejieventh Circuit’s Interpretations of St Cyr

Although our Court has not squarely decided the

retroactivity issue splitting the circuits, we have come close to

doing so on two occasions. We have all but said that St. Cyr’s

retroactivity analysis does not apply to aliens who were

convicted after a trial—as opposed to a guilty plea—and that §

212(c) relief is, therefore, not available to such aliens. Here,

we examine our two prior decisions.

In Alexandre v. United States Attorney General, 452 F.3d

1204, 1205 (Lith Cir. 2006), this Court addressed the BIA’s

denial of Alexandre’s “motion to reopen his deportation

71 In the Third Circuit’s view, “[nJowhere in the Supreme Court's

jurisprudence . . . has reliance become the sine qua non of the retroactive

effects inquiry. Moreover, nothing in the Landgraf line of cases supports

the theory that the limits of permissible retroactivity are different for one

group-those who accept (or consider) a plea agreement-than they are for

another—those who exercise their constitutional right to a trial.” Atkinson,

479 F.3d at 231 (citation omitted).

The Fourth Circuit in Chambers expressly rejected the view, taken

by the Third Circuit, that the repeal of § 212(c) creates “new legal

consequences.” 307 F.3d at 293. Whereas the Third Circuit identifiec the

relevant past conduct as the alien’s conviction (when determining that

ITRIRA imposes “new legal consequences” on that act), the Fourth Circuit

treated the relevant past conduct as the “decision to go trial.” Id. The

Fourth Circuit also reasoned that in S¢. Cyr, the alien’s decision to plead

guilty “immediately changed his status from non-deportabie to

deportable.” /d. at 290. In contrast, an alien like Chambers—who did not

plead guilty-made “no decision that adversely impacted his imnugration

status.” /d. at 291. “IIRIRA did not change the impact of Chambers’

decision to go to trial on his immigration status. . . . Chambers’ decision

to go to trial did not render him deportable or subject him to certain

deportation, regardless of whether pre- or post-IIRIRA law is applied.” /d.

at 293.

23a

proceedings in order to permit him to apply for relief under

former INA § 212(c).” The BiA denied the motion and

concluded that Alexandre was ineligible for § 212(c) relief.

Id. Alexandre (1) had been convicted of drug charges

(considered an “aggravated felony’’), (2) following a 1989

jury tral, and (3) had served five years of his sentence. /d.

Relying on the five-year bar in the Immigration Act of 1990,

Pub. L. No. 101-649, § 5Sil(a), 104 Stat. 4978, 5052

(“IMMACT-90"),”” the BIA determined that Alexandre was

precluded from seeking § 212(c) relief. Jd. at 207.

This Court denied Alexandre’s petition for review of the

BIA’s denial of his motion to reopen. /d. at 1207. We noted

that Alexandre was convicted in 1989 and that when

deportation proceedings began in 1994 “the had served at least

5 years of his sentence.” /d. We stated that “the retroactivity

rationale of St. Cyr does not apply to IMMACT-90.” Jd.

“Thus, at the time of his deportation proceedings,

[Alexandre] was ineligible for § 212(c) relief because of the

five-year bar.” /d. Citing federal regulation * C.F.R. §

1003.44(a) we also stated that Ҥ 212(c) relief is not available

to aliens who were convicted after a trial instead of on a

guilty plea.” Jd.

Although Alexandre argued that IMMACT-90's five-year

ar produced “tan impermissible retroactive effect because he

committed his crime before the statute including [the bar] was

passed,” this Court determined that his “argument was

resolved in [his] initial appeal before the BIA, and for that

reason it [was] not properly before us” in the petition for

review of the deniai of his motion to reopen. /d. (emphasis

added). We also noted, albeit in dictum, that “[«]ven if the

2 IMMACT-90 “provided that an alien convicted of an aggravated

felony who had served at least five years of his sentence could not seek a

waiver of inadmissibility under then INA § 212(c)." Alexandre, 452 F.3d

at 1207.

24a

retroactivity rationale of St. Cyr did apply to IMMACT-90, it

would not apply to Alexandre because he did not plead guilty

to his drug trafficking charges, but instead proceeded to trial

and was convicted by a jury.” Jd.”

Alexandre is instructive. But it does not squarely resolve

the issue presented in this petition. Alexandre involved a

different statute that did not repeal all of § 212(c). And we

stated quite clearly, “the retroactivity rationale of St. Cyr does

not apply to IMMACT-90.” Jd. Admittedly, Alexandre did

state that Ҥ 212(c) relief is not available to aliens who were

convicted after a trial instead of on a guilty plea.” /d.

However, our comments on the retroactivity issue and the

scope of St. Cyr were classic dicta because we explicitly

noted that the retroactivity issue was “not properly before us.”

Id.

As we noted earlier, the same retroactivity issue was

presented in Brooks v. Ashcroft, 283 F.3d 1268, 1273-74 (11th

Cir. 2002), but a jurisdictional bar, now removed by 8 U.S.C.

§ 1252(a)(2)(D), prevented us from resolving it.2* 283 F.3d at

1271-73. Although Brooks does not control the discrete

retroactivity issue now before us, it also sheds light on our

interpretation of St. Cyr.

In Brooks, we addressed and rejected two constitutional

challenges—under the Sixth Amendment and the Equal

23 We further mentioned that “{e]ven without the five-year bar, the

plain language of § 1003.44 also precludes those who did not plead guilty

from relief.” Alexandre, 452 F.3d at 1207.

** As we explained in Part II. supra, the Real ID Act of 2005

subsequently conferred federal courts with jurisdiction to address pure

legal issues in the removal context. See 8 U.S.C. § 1252(a)(2)(D).

Therefore, Brooks has only been superseded as to its jurisdictional

component, not its endon«ment of the constitutionality of the St. Cyr

framework. Brooks, 283 F.3d at 1272- 73, superseded in part by 8 U.S.C.

§ 1252(a)(2)(D).

25a

Protection Clause—to applying IIRIRA’s repeal of § 212(c) to

aliens, like Brooks, who were convicted before IIRIRA’s

effective date. First, Brooks argued that applying IIRIRA

“would impermissibly penalize him for exercising his Sixth

Amendment rights.” Brooks argued that since St. Cyr

authorized those who pled guilty to apply for § 212(c) relief,

applying it to an alien convicted after a trial necessarily

penalized him for exercising his Sixth Amendment right to

trial. Jd.

This Court rejected Brooks’s Sixth Amendment

challenge. Nothing in St. Cyr changed the fact that Brooks

“was given the opportunity to be heard, the right to examine

witnesses against him, the right to offer testimony, and the

right to be represented by counsel.” Jd We were “thus hard-

pressed to see how his Sixth Amendment rights were

violated.” Jd. We quoted St. Cyr for the proposition that alien

defendants are “acutely aware of the immigration

consequences of their convictions.” /d. at 1274 (quoting Sr.

Cyr, 533 U.S. at 322). We concluded that “Brooks weighed

his options and was given a full trial, and was thus accorded

his Sixth Amendment rights.” /d.

This Court also rejected Brooks’s Equal Protection

challenge. Jd. Brooks argued that “it violates the Equal

Protection Clause to apply IIRIRA § 304(b) retroactively to

aliens whose convictions preceded the enactment of ITRIRA,

but yet preventing such retroactive application against aliens

who pled guilty as in St. Cyr.” Jd. But we found that there

was a rational basis for distinguishing between the two

groups. /d. And we quoted approvingly St. Cyr’s explanation

of why plea agreements involve a quid pro quo, tit-for-tat

exchange, between a criminal defendant and the government.

Therefore, we concluded that Brooks’s Equal Protection

claim had “no merit.” Jd. Nonetheless, Brooks did not directly

address whether [IRIRA’s repeal of § 212(c) had an

impermissible retroactive effect-the question that Ferguson

raises here.

26a

D. Ferguson’s Petition

Ferguson argues that the BIA erred by limiting St. Cyr

exclusively to guilty pleas and urges us to reject any reliance

requirement for the purpose of determining whether I[RIRA’s

repeal of § 212(c) impermissibly applies retroactively to

aliens like herself.7* Ferguson argues that because [IRIRA

impermissibly attached new legal consequences and inflicted

new legal disabilities on her past conviction, she is still

eligibie to apply for § 212(c) relief. And she asks us to adopt

an approach akin to the Third Circuit’s.

The government, on the other hand, asks that we

narrowly interpret the Sz. Cyr retroactivity shield as only

applicable to aliens who pled guilty. It points out that the

Executive Office for Immigration Review has promulgated

regulations consistent with this narrow interpretation of Sz.

Cyr.2° The government contends that only those aliens who

pled guilty can show reliance interests strong enough to

warrant tempering the retroactive effecis of IIRIRA’s repeal

of § 212(c).

We decline to adopt the approach urged by Ferguson. In

our view, reliance is a core component of St. Cyr’s

retroactivity analysis as it applies to aliens challenging the

application of [IRIRA’s repeal of § 212(c). For starters, we do

not write on a blank slate. In Alexandre, we interpreted the

“retroactivity rationale of St. Cyr” as inapplicable where the

alien “did not plead guilty to his drug trafficking charge, but

> We review the BIA’s statutory interpretation de novo. Sarmiento

v. U.S. Att'y Gen., 381 F.3d 1277, 1279-80 (11th Cir. 2004). We owe no

deference when the issue involves the retroactive application of a statute.

/d. at 1280.

6 Exec. Office for Immigration Review, Section 212(c) Relief for

Aliens With-Certain Criminal Convictions Before April 1, 1997, 69

Fed.Reg. 57,826 (Sept. 28, 2004) (codified at 8 C.F.R. pts. 1003, 1212,

1240 (2006)).

27a

instead proceeded to trial and was convicted by a jury.” 452

F.3d at 1207. Although this dictum is not binding, we

recognize it aS a persuasive reason to reject Ferguson’s

argument that reliance should not bear on a retroactivity

analysis in this context.

Second, our reading of St. Cyr bolsters our conclusion.

To take an alternate view would render the Supreme Court’s

reasoning and analytical approach— explained in St. Cyr—

superfluous by half. Were Ferguson correct, the Supreme

Court’s discussion of reliance in St. Cyr was a wholly

unnecessary and gratuitous academic exercise. And the notion

that IIRIRA “plainly attached new legal consequences to

[Ferguson’s] conviction,” Atkinson, 479 F.3d at 230, was so

plain that it was lost on the Supreme Court. The fact that it is

possible to advance a retroactivity claim in some

circumstances without a showing of reliance does not give us

carte blanche to discard the Supreme Court’s pronouncements

on the matter.

Even if reliance is not the only basis for determining

whether a statute is impermissibly retroactive, see St. Cyr,

533 U.S. at 321 n.46, the retroactivity analysis is still

“informed and guided by considerations of fair notice,

reasonable reliance, and settled expectations,” id. That is, just

because an alien is not required to demonstrate reliance does

not mean that she may exclusively rely on other portions of

the Supreme Court’s retroactivity jurisprudence and pretend

reliance is irrelevant.”’

27 In Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33 (2006), the

Supreme Court addressed whether INA § 241(a)(5) had an impermissible

retroactive effect on aliens who “reentered the United States before

ITRIRA's effective date.” The Supreme Court held that Sv. Cyr's

retroactivity rationale, which involved the quid pro quo nature of a guilty

plea as it applied to eligibility for § 212(c) relief, did not address the

concerns present when § 241(a)(5) applies. /d. at 44. “[Section 241(a)(5)]

28a

We recognize the Supreme Court has refused to adopt a

rigid, single test for determining whether a statute has an

impermissible retroactive effect. See St. Cyr, 533 U.S. at 321

n.46. However, it strikes us as more reasonable to focus on

the reliance elements, as laid out in Sz. Cyr, than other

elements of a retroactivity analysis, put forth in cases such as

Landgraf. St. Cyr confronted the exact statutory provision at

issue here-——§ 212(c)}—and laid out a sensible framework for

deciding whether IIRIRA’s repeal of § 212(c) relief has an

impermissible retroactive effect. In our view, the St. Cyr

approach is entitled to more weight than a decision

concerning the retroactivity analysis of a completely different

statute. See Landgraf, 511 U.S. at 250; see also Cohens v.

Virginia, 19 U.S. 264 (1821) (“It is a maxim not to be

disregarded, that general expressions, in every opinion, are to

be taken in connection with the case in which those

expressions are used.”’).

applies to stop an indefinitely continuing violation that the alien himself

could end at any time by voluntarily leaving the country.” /d@. Unlike the

impermissible effects that flow from the decision to rely on a guilty plea

in the § 212(c) context, “[iJt is. . . the alien's choice to continue his illegal

presence, after illegal reentry and after the effective date of the new law,

that subjects him to the new and less generous legal regime, not a past act

that he is helpless to undo up to the moment the Government finds him

out.” /d.; id. at 44 n.10 (“Fermandez-Vargas's claim to such relief was

contingent, and it was up to him to take some action that would elevate it

above the level of hope. . . . Fernandez-Vargas never availed himself of

them or took action that enhanced their significance to him in particular,

as St. Cyr did in making his guid pro quo agreement.”). Although

Fernandez-Vargas does not control the discrete legal issue before us, we

mention it because its reading of St. Cyr is consistent with our own. Here,

Ferguson does not argue that she relied on some completed act that she is

helpless to undo. A jury verdict is not an intentionally committed “past

act” that Ferguson committed. [t is a byproduct of one’s decision to

engage in criminal conduct.

29a

We therefore hold that reliance is a component of the

retroactivity analysis as it applies to aliens, deportable for

criminal offenses, who wish to show that IIRIRA’s repeal of §

212(c) has an impermissible retroactive effect. Here,

Ferguson did not plead guilty but was convicted by a jury.

And aside from her decision to go to trial, she points to no

other “transactions” or “considerations already past” on

which she relied. Joining the majority of circuits, we decline

to extend St. Cyr to aliens who were convicted after a trial

because such aliens’ decisions to go to trial do not satisfy Sv.

Cyr’s reliance requirement. Therefore, § 212(c) relief is not

available to such aliens.”* See Hernandez-Castillo, 436 F.3d

at 520; Montenegro, 355 F.3d at 1037; Rankine, 319 F.3d at

102; Chambers, 307 F.3d at 290-93; Dias, 311 F.3d at 458;

see also Saravia-Paguada, 488 F.3d at 1131; Armendariz-

Montoya, 291 F.3d at 1121. Accordingly, Ferguson’s petition

for relief is DENIED.

8 We express no opinion on whether aliens may prove an

impermissible retroactive effect by demonstrating reliance on other

“transactions” or “considerations already past” that do not involve a

criminal conviction or the decision to go to tnal. That issue is not before

us in this particular appeal. Nor do we express a view on the availability

of § 212(c) relief in circumstances where an alien (convicted after trial)

makes an individualized showing of reliance on § 212(c) and

affirmatively chooses to wait to file a § 212(c) application to build up a

better record. See Restrepo, 369 F.3d at 634; Carranza-De Salinas, 477

F.3d at 208-210. Here, Ferguson has not claimed such reliance.

30a

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A35 730 532 - Miami, FL

Date: Jan. 25 2008

In re: SANDRA FERGUSON

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Philip M. Zyne, Esquire

APPLICATION: Waiver of inadmissibility under section

212(c) of the Act

ORDER:

PER CURIAM. This case was last before the Board on

June 11, 2002, when we affirmed the May 18, 1999, decision

of the Immigration Judge as to the respondent’s removability

and ineligibility for cancellation of removal, but remanded for

the Immigration Judge to determine whether the respondent

was eligible to apply for a waiver under former section 212(c)

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

pursuant to the United States Supreme Court’s decision in JNS

v. St. Cyr, 533 U.S. 289 (2001). The respondent, a native and

citizen of Jamaica, appeals from the June 1, 2006, decision of

the Immigration Judge finding her ineligible for relief under

former section 212(c), and reinstating the prior order of

removal dated May 18, 1999. The appeal will be dismissed.

We affirm the Immigration Judge’s decision in its

entirety, and add the foliowing comments. On appeal, the

respondent raises two arguments. The first, that the failure of

federal regulations to extend St. Cyr eligibility for section

212(c) relief to aliens who were convicted after trial is

3la

contrary to law and should not be followed in cases arising

within the jurisdiction of the United States Court of Appeais

for the Eleventh Circuit, is unpersuasive. In the absence of a

countervailing precedent decision of the Eleventh Circuit

(under whose jurisdiction the present case arises), the clear

language of 8 C.F.R. § 1212.3(f)(4) precludes our acceptance

of such argument. See Matter of Fede, 20 I&N Dec. 35 (BIA

1989) (stating that regulations promulgated by the Attorney

General are binding on the Board and Immigration Judges);

see also Matter of Cortez, 16 I&N Dec. 289 (BIA 1977)

(noting that it is settled that the Board and Immigration

Judges lack jurisdiction to rule on the constitutionality of

immigration statutes and regulations).

We are also unpersuaded by the respondent’s second

argument, that she should be found eligible to apply for a

section 212(c) waiver pursuant to Cunningham v. U.S. Atty.

Gen., 335 F.3d 1262 (11" Cir. 2003). The respondent claims

to have been served with an Order to Show Cause (“OSC”) in

1986, which under Cunningham would allow her to apply for

a section 212(c) waiver. However, the respondent was

subsequently unable to provide any proof in support of her

contention. While the Department of Homeland Security

(“DHS”) initially conceded eligibility on this point (Tr. at 20),

the Immigration Judge subsequently allowed the DHS to

withdraw such concession (Tr. at 75), which was determined

to have been made in error.” We find respondent’s argument,

*? At the February 2, 2006, hearing, the Immigration Judge stated

that the prior DHS attorney who had earlier made such concession “was

wrong in his assessment, and I was wrong in accepting his statement at

the time” (Tr. at 75). While the transcript reflects the belief of

respondent's counsel that the DHS had relied on evidence in its file of the

issuance of the 1986 OSC (Tr. at 73), counsel admits in his appellate brief

that “subsequently, it was determined that there was no evidence in the

file showing that an Order to Show Cause had ever been issued.”

Respondent’s Appeal Brief at 10.

32a

that her being served with an OSC in 1986 is “the only logical

assumption” because “‘[i]t is inconceivable to believe” that

she would be released without one after compieting her

sentence, to be impermissibly speculative.

Accordingly, the appeal is dismissed.

FOR THE BOARD

33a

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

Miami, Florida

File A 35 730 532

Date: June |, 2006

In the matter of:

SANDRA FERGUSON, Petitioner

IN REMOVAL PROCEEDINGS

CHARGE: Section 237 (a) (2) (B) (i).

APPLICATION: Waiver under Section 212(c).

ON BEHALF OF THE RESPONDENT:

Phillip Simon, Esquire

ON BEHALF OF THE GOVERNMENT:

David J. Kelly, Esquire

Assistant District Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

This case comes before the Court on a remand from the

Board of Immigration Appeals. It appeared on May 18, 1999.

This Court had rendered a decision, find:ng the respondent

removal as charged and also finding her ineligible for

cancellation of removal under Section 240A(a) of the

Immigration and Nationality Act (hereinaiter the Act) and

ordering her removed from the United States.

34a

The case was appeaied to the Board of Immigration

Appeals which, on June 11, 2002, rendered its findings in

which it sustained the decision of this Court, but remanded

the case for further proceedings, pursuant to JNS v. St. Cyr,

533 U.S. 289 (2000), to determine whether the respondent

was eligible for relief in the form of a waiver under old

Section 212(c) of the Act as, according to the Board, the

commissioned documents contained in the record of this case

did not clearly reflect whether or not said convictions were

pursuant to a guilty plea. If they had been pursuant to a guilty

plea, then the respondent would have been statutorily eligible,

under JNS v. St. Cyr, to apply for a waiver under Section

212(c).

The Court held an evidentiary hearing in this case on the

respondent’s application for 212(c), which was filed with the

Court pursuant to the Board remand and in that hearing the

responcent, under oath, testified and admitted that her

conviction was not the result of plea agreement, but that she

had actually gone to trial. The parties agree that this is so.

And that being the case, the respondent is not eligible for a

waiver under Section 212(c) pursuant to JNS v. St. Cyr. The

Court will therefore pretermit said application and restate its

order of removal.

The following orders will issued:

ORDERS

IT 'S HEREBY ORDERED that the application for a waiver

under Section 212(c) be pretermited and denied.

[tT IS FURTHER ORDERED that the respondent be removed

and deported to Jamaica.

PEDRO A. MIRANDA

Immigration Judge

35a

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A35 730 532 — Miami

Date: June 11, 2002

In re: SANDRA FERGUSON

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Philip M. Zyne, Esquire

ON BEHALF OF SERVICE:

Amy Isacksori-Rojas

Assistant Disvrict Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A\(i1i), I&N Act

8 U.S.C. § 1227(a)(.. (Aid -

Convicted of aggravated felony

Sec. 237(a)(2)(B)(i), I&N Act

8 U.S.C. § 1227(a)(2)(B)(i) -

Convicted of controlled substance

violation

APPLICATION: Cancellation of removal

The respondent appeals from the Immigration Judge’s

May 18, 1999, decision finding her ineligible for cancellation

of removal under section 240A(a) of the Immigration and

Nationality Act, 8 U.S.C. § 1229b(a), and ordering her

removed from the United States. The respondent’s request for

oral argument is denied. The respondent’s appeal will be

36a

dismissed in pari, but the record will be remanded.

The respondent is a native and citizen of Jamaica who

entered the Lited States as an immigrant in August 1977.

The record reflects that she was convicted on July 7, 1986,

for delivery of a controlled substance, to wit: cocaine, in

violation of Illinois Statute Chapter 56.5 § 1401(a)(2), and

sentenced to 6 years in prison (Exh. 3). Although she

challenges the admission of evidence relating to this

conviction, she has admitted she was convicted of this offense

(Tr. at 22), and she concedes on appeal that she is removable

as charged due to this conviction (Respondent’s Brief at 3).

We therefore do not address this challenge.

The respondent further argues on appeal that the

Immigration Judge erred in finding her convicted of an

aggravated felony and therefore ineligible to apply for

cancellation of removal. We find no error in the Immigration

Judge’s conclusion that the 1986 conviction is an aggravated

felony. Section 101(a){43)(B) of the Act states that a “drug

trafficking crime,” as defined in 18 U.S.C. § 924(c), is an

aggravated felony. Section 924(c)(2) defines a drug

trafficking crime as any felony punishable under the

Controlled Substances Act, or one of the other federa! statutes

listed. Disposition of this issue is guided by our recent

precedent decision in Matter of Yanez, 23 I&N Dec. 390 (BIA

2002), where we held that the determination of whether a

state drug offense constitutes a “drug trafficking crime” must

be made by reference to pertinent authority from the relevant

circuit court of appeals. Accordingly, we tum to an

examination of the pertizent law of the United States Court of

Appeals for the Eleventh Circuit, in whose jurisdiction this

proceeding arisi:s.

The Eieventh Circuit has agreed with other circuit courts

that “for a drug offense to come within 18 U.S.C. § 924(c)(2),

and hence to fit within the definition of aggravated felony,

two criteria must be met: (1) the offense must be punishable

under one of the three enumerated statutes, and (2) the

37a

offense must be a felony.” See United States v. Simon, 168

F.3d 1271 (11th Cir. 1999), cert. denied, 528 U.S. 844 (1999).

The respondent’s conviction for delivery of a controlled

substance is punishable under the Controlled Substances Act.

See 21 U.S.C. § 841(a) (penalizing distribution of a controlled

substance); see also 21 U.S.C. § 802 (the term “distribute”

means to “deliver” a controlled substance). Furthermore, the

Eleventh Circuit concluded that a crime is a felony within the

meaning of section 924(c)(2) if it is classified as a felony by

the jurisdiction in which the perpetrator was convicted. See

United States v. Simon, supra. The respondent’s offense is

classified as a felony in Illinois (Exh. 3). See [ll. Stat. Ch.

56.5 § 140l(a). Thus, under Simon, the respondent’s

conviction is considered a “drug trafficking crime” within the

meaning of section 924(c)(2), and i« therefore an aggravated

felony under section 101(a)(43)(B) of the Act. The respondent

is consequently ineligible for cancellation of removal. See

section 240A(a)(3) of the Act.

Nevertheless, remand of this matter is appropriate under

the United States Supreme Court’s recent decision in JNS v.

St. Cyr, 533 U.S. 289 (2001), in which the Court held that

section 212(c) relief remains available for aliens whose

convictions were obtained through plea agreements and who,

notwithstanding those convictions, would have been eligible

for section 212(c) relief at the time of their plea under the law

then in effect. The conviction documents contained in the

record do not clearly reflect whether or not the respondent’s

conviction was pursuant to a guilty plea (Exh. 3). See

generally Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002)

(finding that under St.Cyr, a defendant who pleads guilty in a

criminal matter is not similarly situated to a defendant who

does not enter a guilty plea). Thus, it is appropriate to remand

the record for the submission of evidence regarding her

possible eligibility for relief under section 212(c).

Accordingly, the respondent’s appeal will be dismissed in

part, but the record will be remanded for further proceedings

38a

consistent with the foregoing opinion.

ORDER: The appeal is dismissed with regard to

removability and eligibility for cancellation of removal.

FURTHER ORDER: The record is remanded to the

Immigration Court for further proceedings consistent with the

foregoing opinion.

FOR THE BOARD

39a

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

Miami, Florida

File A 35 730 532

Date: May 18, 1999

In the matter of:

SANDRA FERGUSON, Petitioner

IN REMOVAL PROCEEDINGS

CHARGE: Section 237 (a) (2) (B) (i).

APPLICATION

ON BEHALF OF THE RESPONDENT:

Anis Saleh, Esquire

ON BEHALF OF SERVICE:

Catherine Muhletaler, Esq.

Assistant District Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Jamaica who

was admitted into the United States on or about August 4",

1977 as an immigrant. She was convicted on July 7”, 1986 in

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

delivery of a controlled substance, to wit: cocaine in violation

of Illinois statute 56.5-1401-A(2), and was placed in removal

proceedings through a Notice to Appear dated July 5", 1998,

40a

as amended by additional charges of inadmissibility filed by

‘ve Immigration and Naturalization Service (hereinafter the

Service) on April 6, 1999. Based on the respondent’s

admissions, as well as the conviction records submitted by the

Service, and marked as group Exhibit 3, it appears that the

respondent was, in fact, convicted as alleged and, having been

thus convicted, it appears that she is, in fact, removable under

Section 237(a)(2)(b)(i) of the Immigration and Nationality

Act, as amended, in that anytime after admission she has been

convicted of a violation of a state, the United States, or a

foreign country relating to a controlled substance (as defined

in Section 102 of the Controlled Substances Act, 21 U.S.C.

802), other than a single offense involving possession for

one’s own use of 30 grams or less of marijuana. Since the

respondent has been convicted for delivery of a controlled

substance, to wit, cocaine, it appears that she is, in fact,

removable under Section 237(a)(2)(b)(i) of the Immigration

and Nationality Act and the Court will so find.

Given the nature of the respondent’s conviction, it

appears that she, at this time, is not eligible for relief from

removal, even though she is an immigrant and has been a

lawful, permanent resident of this country since August 4"" of

1977. Because of the nature of her convictions, she is

ineligible for relief in the form of cancellation of removal and

it does not appear to the Court that she is eligible for any

other form of relief, nor is she applying for relief. The Court,

therefore, has no choice but to order that the respondent be

removed from the United States as follows.

ORDER

IT {S HEREBY ORDERED that the respondent be

removed and deported to Jamaica based on the charges

contained in the Notice to Appear.

PEDRO MIRANDA

U.S. Immigration Judge

4la

Title 8. Aliens and Nationality

Chapter 12. Immigration and Nationality

Subchapter II. Immigration

Part Il. Admission Qualifications for Aliens; Travel

Control of Citizens and Aliens

§ 1182. Inadmissible Aliens

(c) Nonapplicability of subsection (a)(1) to (25), (30), and

(31)

Aliens lawfully admitted for permanent residence who

temporarily proceeded abroad voluntarily and not under an

order of deportation, and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may be

admitted in the discretion of the Attorney General without

regard to the provisions of paragraphs (1) to (25), (30), and

(31) of subsection (a) of this section. Nothing contained in

this subsection shall limit the authority of the Attorney

General to exercise the discretion vested in him under section

1181(b) of this title.

42a

[legal Immigration Reform and Immigrant

Responsibility Act

Pub. L. No. 104-208

Sept. 30, 1996

Sec. 304. REMOVAL PROCEEDINGS; CANCELLATION

OF REMOVAL AND ADJUSTMENT OF STATUS;

VOLUNTARY DEPARTURE (REVISED AND NEW

SECTIONS 239 TO 2400).

(b) REPEAL OF SECTION 212(c).—Section 212(c) (8 U.S.C.

1182(c)) is repealed.