# Appendix — Ferguson v. Holder

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0941%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 991

## Text

APPENDIX

TABLE OF CONTENTS

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

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Oral Decision of the Immigration Judge

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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in 1998—over a year after § 212(c) was repealed.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she can take advantage of the now-repealed § 212(c).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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0941%3A2. Public record. Not legal advice.