Opposition Brief — Ferguson v. Holder

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No. 09-263

Jn the H-oreme Court of the Gnited States

SANDRA FERGUSON, PETITIONER

Vv.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DONALD E. KEENER

ANDREW C. MACLACHLAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

In 1996, Congress repealed Section 212(c) of the Im-

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

which provided for a discretionary waiver of deporta-

tion, and replaced it with another form of discretionary

relief not available to aliens convicted of certain crimes,

including aggravated felonies and controlled-substance

offenses. In JNS v. St. Cyr, 533 U.S. 289 (2001), this

Court held that the repeal of Section 212(c) did not ap-

ply retroactively to an alien previously convicted of an

aggravated felony through a plea agreement at a time

when the conviction would not have rendered the alien

ineligible for discretionary relief. The questions pre-

sented are:

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

an alien who was convicted of a controlled-substance of-

fense after trial, and who therefore did not relinquish

her right to a trial in reliance on potential eligibility for

a waiver under Section 212(c).

2. Whether detrimental reliance is necessary to es-

tabiush the retroactive effect that this Court has con-

strued the repeal of the availability of relief under for-

mer Section 212(c) to avoid, and, if so, whether actual or

objectively reasonable reliance is required.

TABLE OF CONTENTS

Page

a ee rts ea ee re re Tt 1

GI 0 5.5 445 6060055454554 1

PPO ET PRCT TaN EOE PCr rire gee 2

III ops 5 ee os Ee Eee 5

CONE ok Rs oo 5 ee a eee ee 19

TABLE OF AUTHORITIES

Cases:

Aguilar v. Mukasey, 128 S. Ct. 2961 (2008) ............. 6

Alvarez-Aceves v. Fasano, 150 Fed. Appx. 596

CO Ce Se ik ken eae oe oe ey ea ee 15

Appel v. Gonzales, 146 Fed. Appx. 175 (9th Cir. 2005),

cert. denied, 549 U.S. 1051 (2006) .................. 16

Armendanz-Montoya v. Sonchik:

291 F.3d 1116 (9th Cir. 2002), cert. denied, 539 U.S.

We I nea keynes eo eee eb eee 13, 15

Be Cl a, ee CE? 0c oe os eee oe ee 6

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

NY eva hoe eo eee a 10, 11, 12, 14, lo

Berisha) v. Gonzales, 238 Fed. Appx. 275 (9th Cir.

BI a eran eee a ee ee 16

Canto v. Holder, No. 08-4272, 2010 WL 308795

(Tha Gir, Fam. BE, BOO) sc vicki oc cde cates eewnses 12, 18

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

EI ED ena ee keen es ca Ww Ueecieeanes 16

Cerbacio-Diaz v. Gonzales, 234 Fed. Appx. 583

RE ES onc cca tak easter ence a 17

Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002) ..... 10 15

Clark v. Martinez, 543 U.S. 371 (2005) ............... 7,8

(IIT)

IV

Cases—Continued: Page

Crump v. Reno, 1380 Fed. Appx. 500 (2d Cir. 2005) ...... 15

Cruz-Garcia v. Holder, 129 S. Ct. 2424 (2009) ........... 6

Cruz-Garcia v. Mukasey, 285 Fed. Appx. 446

(9th Cir. 2008), cert. denied, 129 S. Ct. 2424 (2009) ... 17

Dias v. INS, U1 F.3d 456 (1st Cir. 2002),

eert. denied, 58° U.S. 926 (2003) ..........20. eens 10

Esquivel v. Mukasey, 543 F.3d 919 (7th Cir. 2008) ..... 17

Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004),

cert. demied, 543 U.S. 1145 (2005) ................2.- 16

Evangelista v. Attorney Gen., 176 Fed. Appx. 306

ee I oe one e steven a. cu eae aeeieeens 16

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ....... 9

Gallardo v. Mukasey, 279 Fed. Appx. 484 (9th Cir.

CR et Pet ae RN AS ees Te rane ge, ee ae 17

Garcia v. Fasano, 62 Fed. Appx. 816 (9th Cir. 2003) .... 16

Garcia-Ortiz v. Gonzales, 194 Fed. Appx. 513

Cn ne Rs Seer aee hak one a ka Oe eas neeae ee 17

Haque v. Holder, 312 Fed. Appx. 946 (9th Cir. 2009) .... 16

Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006) .. 10, 14,16

Hernandez-Castillo v. Gonzales, 549 U.S. 810 (2006) ..... 6

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

(5th Cir.), cert. denied, 549 U.S. 810 (2006) .......... 10

Hernandez de Anderson v. Gonzales, 497 F.3d 927

ee IE ce seer set oan met Resch 10, 14

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

ee nc er ee soe nee ae vi

INS v. St. Cyr, 533 U.S. 289 (2001) ...... 2, 3, &, 4, o 11, 12

Jaw-Shi Wang v. Ashcroft, 71 Fed. Appx. 624

(9th Cir. 2003), cert. denied, 540 U.S. 1128 (2004) .... 17

Cases—Continued: Page

Johnson v. Holder, 564 F.3d 95 (2d Cir. 2009),

petition for cert. pending, No. 09-7909 (filed

Ce Db uc 30 das ces eos Le eee On 15

Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir.

1999), cert. denied, 529 U.S. 1041 (2000) ............ 13

Kelava v. Gonzales, 434 F.3d 1120 (9th Cir.),

cert. denied, 649 U.S. 810 (2006) 2.6 ccc ceteecsvens 16

Kellermann v. Holder, No. 08-3927, 2010 WL 252264

EG fet Me: a en eg ae a 10

LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998),

cert. denied, 528 U.S. 1158 (2000) ............... 13, 14

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ..... 6,8

Lawrence v. Ashcroft, 540 U.S. 910 (2003) .............. 6

Lopez-Lopez v. Mukasey, 285 Fed. Appx. 440

I sac 55 5 cu bbe wee oe kes den eee eeae 15

Lovan v. Holder, 574 F.3d 990 (8th Ci~. 2009) ....... 10, 14

Manea v. Mukasey, 301 Fed. Appx. 589 (9th Cir.

| ee Pa nee Re a ee ener ee 16

Martin v. Hadiz, 527 U.S. 343 (1999) .. 1. ccc ee eee 6,9

Martinez-Murillo v. Mukasey, 267 Fed. Appx. 519

I oases outs ig cae eb uaa oe Ow nee ee 17

Matian v. Mukasey, 262 Fed. Appx. 753 (9th Cir.

SG tt Fe cae 5 A wee Fea eoEGS SERS CERN OSES 15

Mbea v. Gonzales, 482 F.3d 276 (4th Cir. 2007) ...... 10, 11

Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004)... 15

Morgorichev v. Mukasey, 274 Fed. Appx. 98 (2d Cir.

2008), cert. denied, 129 S. Ct. 242 (2009) ............ 16

Nadal-Ginard v. Holder, 558 F.3d 61 (1st Cir. 2009) .... 17

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

Vi

Cases—Continued: Page

Ponnapula v. Ashcroft, 373 F.3d 480 (8d Cir.

Tei oue atc ans ead seas sky sake ome sak 11, 13, 16

Prieto-Romero v. Mukasey, 304 Fed. Appx. 512

2s aes ste se eee RAW ee eee Oka ces 17

Pugliese v. Gonzales, 174 Fed. Appx. 601 (2d Cir.

St Seay eas Cadk aa soak hee eee eee Oke os 16

Quinones-Saucedo v. Ashcroft, 83 Fed. Appx. 865

le re ee 16

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

DO Mas WUE avi ks ccecdncucesscavets 10, 13, 16

Raya-Baez v. INS, 63 Fed. Appx. 381 (9th Cir. 2003) ... 15

Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004) ...... 15

Reyes v. McElroy, 543 U.S. 1057 (2005) ................ 6

Saravia-Paguada v. Gonzales, 488 F.3d 1122 (9th Cir.

2007), cert. denied, 128 S. Ct. 2499 (2008) ........... 15

Serrano-Salcedo v. Ashcroft, 56 Fed. Appx. 803

oe aban ea ecr aches CON Co eak ewes 15

Sidhu v. Gonzales, 179 Fed. Appx. 221 (5th Cir.),

cert. denied, 549 U.S. 9938 (2006) ..............000.. 16

Singh v. Keisler, 255 Fed. Appx. 710 (4th Cir. 2007) .... 16

Singh v. Mukasey, 520 F.3d 119 (2d Cir. 2008) ......... 16

St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000),

aff’d, 583 U.S. 289 (2001) ................ 13

Stephens v. Ashcroft, 543 U.S. 1124 (2005) ... . . 6

Swaby v. Ashcroft, 357 F.3d 156 (2d Cir. 2004) . .. 16

Tecat v. Gonzales, 188 Fed. Appx. 308 (5th Cir. 2006) ... 16

Theodoropoulos v. INS, 358 F.3d 162 (2d Cir.),

cert. denied, 543 U.S. 823 (2004) ..............0005. 16

VII

Cases—Continued: Page

Thom v. Ashcroft, 369 F.3d 158 (2d Cir. 2004),

cert. denied, 546 U.S. 828 (2005) ................5- 16

Thom v. Gonzales, 546 U.S. 828 (2005) ............0 ces 6

Trevor v. Reno, 88 Fed. Appx. 445 (2d Cir. 2004) ....... 16

United States v. De Horta Garcia, 519 F.3d 658

(7th Cir.), cert. denied, 129 S. Ct. 489 (2008) ...... 10,17

'/nited States v. Munoz-Recillas, 224 Fed. Appx. 621

(9th Cir.), cert. denied, 128 S. Ct. 1889 (2007) ....... 16

Walcott v. Chertoff, 517 F.3d 149 (2d Cir. 2008) ......... 15

Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006) ........ 16

Zamora v. Mukasey, 128 S. Ct. 2051 (2008) ............. 6

Statutes and regulation:

Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, § 440(d),

SEES se nce deiccehesdepekan cere eassanee es 2

Illegal Immigration Reform and Immigrant Respon-

sibility Act of 1996 Pub. L. No. 104-208, Div. C,

§ 304(b), 110 Stat. 3009-597 ........... cee eee eee 2

Immigration Act of 1990, Pub. L. No. 101-649, § 511,

Se I coy cao eee nies deed Cave take ekte een 2

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

CO Sree ee rr eee eee Tee eee rT eer ee 2

Der es BED ois 5c ors 40s eae shee Res 3

B UBL. LIBS) GBD) oc cece scence. passim

GS US A., TEAMED) ve ccc nsec vccsncess .4

Ur EE 3 occa ok cca deene een es 4

Ces aaa eas sae scares ee eans chokes 2

GE. Cate >: Serer nae 3

Vill

Regulation—Continued: Page

SOF Te, TR oc coos co nevsstcexdeseeeeeresiaeseres 3

Miscellaneous:

Exec. Office for Immigration Review, U.S. Dep’t of

Justice, FY 2008 Statistical Year Book (2009)

<http://www.justice.gov/eoir/statspub/fy08syb.

errr rrr rr rey err rere re ee eS 17

64 Fed. Rew. 47,506 (1068) cccvcccvccccvccusssscsnses 18

Section 212(c) Relief for Aliens with Certain Crimi-

nal Convictions Before April 1, 1997, 69 Fed. Reg.

OE GO occ ndnseeivdadxtviiiver eee 3

Jn the Supreme Court of the Cnited States

No. 09-263

SANDRA FERGUSON, PETITIONER

»

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-29a)

is reported at 563 F.3d 1254. The orders of the Board of

Immigration Appeals (Pet. App. 30a-32a, 35a-38a) and

the immigration judge (Pet. App. 33a-34a, 39a-40a) are

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 2009. On June 23, 2009, Justice Thomas ex-

tended the time within which to file a petition for a writ

of certiorari to and including July 29, 2009. On July 16,

2009, Justice Thomas further extended the time to Au-

gust 28, 2009, and the petition was filed on that date.

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

1254(1).

(1)

2

STATEMENT

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

Nationality Act (INA), 8 U.S.C. 1182(c) (1994) (repealed

1996), authorized some permanent resident aliens domi-

ciled in the United States for seven consecutive years to

apply for discretionary relief from exclusion. While, by

its terms, Section 212(c) applied only to exclusion pro-

ceedings, it was generally construed as being applicable

in both ¢eportation and exclusion proceedings. See INS

v. St. Cyr, 533 U.S. 289, 295 (2001).

Between 1990 and 1996, Congress enacted three stat-

utes that “reduced the size of the class of aliens eligible

for” relief under Section 212(c). St. Cyr, 533 U.S. at 297.

In the Immigration Act of 1990, Pub. L. No. 101-649,

§ 511, 104 Stat. 5052, Congress made Section 212(c) un-

available to anyone who had been convicted of an aggra-

vated felony and served a term of imprisonment of at

least five years. In 1996, in the Antiterrorism and Ef-

fective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, § 440(d), 110 Stat. 1277, Congress further

amended Section 212(c) to make ineligible for discretion-

ary relief aliens previously convicted of certain criminal!

offenses, including controlled-substance offenses. See

St. Cyr, 583 U.S. at 297 n.7. Later that year, in the Ille-

gal Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C,

§ 304(b), 110 Stat. 3009-597, Congress repealed Section

212(c) in its entirety, and replaced it with Section 240A

of the INA, 8 U.S.C. 1229b. The latter section now pro-

vides for a form of discretionary relief known as cance!-

lation of removal that is not available to many criminal

aliens, including those who have been convicted of an

aggravated felony (which, as relevant here, includes a

3

drug-trafficking crime). See 8 U.S.C. 1101(a)(43)(B),

1229b(a)(3); see also St. Cyr, 533 U.S. at 297.

In St. Cyr, this Court held, based on principles of

non-retroactivity, that IIRIRA’s repeal of Section 212(c)

should not be construed to apply to an alien convicted of

an aggravated felony through a plea agreement at a time

when the conviction would not have rendered the alien

ineligible for relief under Section 212(c). 533 U.S. at

314-326. In particular, the Court explained that, before

1996, aliens who decided “to forgo their right te a trial”

by pleading guilty to an aggravated felony “almost cer-

tainly relied” on the chance that, notwithstanding their

convictions, they would stil) have some “likelihood of

receiving § 212(c) relief” from deportation. /d. at 325.

On September 28, 2004, after notice-and-comment

rulemaking proceedings, the Department of Justice pro-

mulgated regulations to take account of the decision in

St. Cyr. See Section 212(c) Relief for Aliens with Cer-

tain Criminal Convictions Before April 1, 1997, 69 Fed.

Reg. 57,826 (2004). In its response to comments re-

ceived on its proposed rule, the Department noted cases

holding that “an alien who is convicted after trial is not

eligible for [SJection 212(c) relief under St. Cyr,” and

then stated that it “has determined to retain the distinc-

tion between ineligible aliens who were convicted after

criminal! trials[] and those convicted through plea agree-

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

in the regulations, which make aliens ineligible to apply

for relief under former Section 212(c) “with respect to

convictions entered after trial.” 8 C.F.R. 1212.3(h).

2. Petitioner is a native of Jamaica who was admit-

ted to the United States for lawful permanent residence

in 1977. Pet. App. 39a; Administrative Record 513

(A.R.). On July 7, 1986, after a trial at which petitioner

4

pleaded not guilty, the Circuit Court for Cook County,

Illinois, found petitioner guilty of the offense of posses-

sion with intent to deliver more than thirty grams of a

substance containing cocaine, in violation of Illinois law.

Pet. App. 39a; A.R. 482-484. On September 9, 1986, peti-

tioner was sentenced to 4 six-year term of imprison-

ment, of which she served less than three years. A.R.

67, 484.

On May 19, 1998, the former Immigration and Natu-

ralization Service (INS) commenced removal proceed-

ings against petitioner. A.R. 515-518. A few weeks

later, INS filed a superseding Notice to Appear, charg-

ing petitioner with being removable for having been con-

victed of an offense relating to a controlled substance

and an aggravated felony drug-trafficking crime. A.R.

513-514; see 8 U.S.C. 1227(a)(2)(B)(i), 1227(a)(2)(A)(iii).

On May 18, 1999, an immigration judge found petitioner

to be removable under 8 U.S.C. 1227(a)(2)(B)(i), on the

basis of her conviction for an offense relating to a con-

trolled substance, and also found her to be ineligible for

cancellation of removal or other relief. Pet. App. 40a.

On June 11, 2002, after this Court’s decision in St.

Cyr, the Board of Immigration Appeals (BIA) remanded

the case to the immigration judge to determine whether

petitioner is eligible for a waiver of removal under for

mer Section 212(c). Pet. App. 37a-38a. On June 1, 2006,

after a hearing, the immigration judge pretermitted peti-

tioner’s application for a waiver because, unlike the alien

in St. Cyr, petitioner had gone to trial on her drug of

fense rather than pleading guilty. /d. at 34a. On Au

gust 4, 2006, the BIA affirmed the immigration judge's

decision and dismissed petitioner's appeal. /d. at 30a

32a.

D

3. The court of appeals denied petitioner’s petition

for review of the BIA’s decision in a published opinion

dated March 31, 2009. Pet. App. la-29a. After describ-

ing what it characterized as a split among the circuits on

how to apply St. Cyr to aliens who did not plead guilty,

Id. at 15a-22a, the court held, as a matter of first im-

pression in the circuit, that reliance is relevant to and

should be the focus of retroactivity analysis as laid out

in St. Cyr, even if it is not the only basis for determining

whether a statute is impermissibly retroactive. /d. at

26a-28a. The court declined to extend St. Cyr’s holding,

and because petitioner did not plead guilty, was con-

victed after a trial, and did not identify any other past

transactions or considerations for which she had relied

on the potential for relief under Section 212(c), the court

found that relief under former Section 212(c) is not

available. Jd. at 29a.

ARGUMENT

Petitioner contends (Pet. 22-24) that JNS v. St. Cyr,

533 U.S. 289 (2001), which involved an alien convicted of

an aggravated felony after a plea agreement, has been

misinterpreted by the majority of the courts of appeals

and that the availability of relief under former Section

212(c) of the INA should be extended to any alien found

guilty of a deportable offense after a jury trial, because

retroactivity analysis should not include any consider-

ation of likely reliance. In the alternative, petitioner

contends (Pet. 24-25) that, if reliance is relevant, there

need not be a showing of “actual, subjective reliance”

because a decision “to go to trial rather than accept [a]

plea bargain[]” could have been made “in reasonable

reliance on the continuing availability of Section 212(c)

relief.”

6

The decision of the court of appeals does not warrant

further review because petitioner’s arguments lack mer-

it. The courts of appeals have correctly recognized that

reliance is a significant factor to be considered for pur-

poses of retroactivity analysis, although it may be given

different weight in different circuits and there is some

variation about whether the requisite reliance must be

actual (as opposed to objectively reasonable) reliance.

Furthermore, the underlying question involves the ret-

roactive effect of a statutory repeal that occurred more

than 13 years ago, and this Court has denied petitions

urging a similar extension of St. Cyr in ‘a number of

prior cases. See, e.g., Cruz-Garcia v. Holder, 129 S. Ct.

2424 (2009); Aguilar v. Mukasey, 128 8S. Ct. 2961 (2008);

Zamora v. Mukasey, 128 S. Ct. 2051 (2008); Hernandez-

Castillo v. Gonzales, 549 U.S. 810 (2006); Thom v. Gon-

zales, 546 U.S. 828 (2005); Stephens v. Ashcroft, 543 U.S.

1124 (2005); Reyes v. McElroy, 548 U.S. 1057 (2005);

Lawrence v. Ashcroft, 540 U.S. 910 (2003); Armendariz-

Montoya v. Sonchik, 539 U.S. 902 (2003).

1. Petitioner argues (Pet. 22-27) that the decision

below conflicts with this Court’s retroactivity analysis,

and that the court of appeals should not have taken any

reliance interest into account in deciding whether the

repeal of Section 212(c) applies to aliens in her position.

That objection lacks merit. As this Court has explained,

in determining whethe: a statute has a retroactive ef-

fect, a court must make a “commonsense, functional

judgment” that “should be informed and guided by ‘fa-

miliar considerations of fair notice, reasonable reliance,

and settled expectations.’” Martin v. Hadix, 527 U.S.

343, 357-358 (1999) (quoting Landgraf v. USI Film

Prods., 511 U.S. 244, 270 (1994)).

7

In St. Cyr itself, this Court placed considerable em-

phasis on the fact that “[p]lea agreements involve a quid

pro quo,” whereby, “[i]n exchange for some perceived

benefit, defendants waive several of their constitutional

rights (including the right to a trial) and grant the gov-

ernment numerous tangible benefits.” 533 U.S. at 321-

322 (citation and internal quotation marks omitted). In

light of “the frequency with which $ 212(c) relief was

granted in the years leading up to AEDPA and

IIRIRA,” the Court concluded that “preserving the pos-

sibility of such relief would have been one of the princi-

pal benefits sought by defendants deciding whether to

accept a plea offer or instead to proceed to trial.” Jd. at

323. And because the Court concluded that aliens in St.

Cyr’s position “almost certainly relied upon th[e] likeli-

hood [of receiving § 212(c) relief] in deciding whether to

forgo their right to a trial,” the Court held that “the

elimination of any possibility of § 212(c) relief by

IIRIRA has an obvious and severe retroactive effect.”

Id. at 325. As the court of appeals below explained, peti-

tioner’s contrary view “would render the Supreme

Court’s reasoning and analytical approach—explained in

St. Cyr—superfluous by half.” Pet. App. 27a.

In asserting that the court of appeals misinterpreted

St. Cyr, petitioner relies principally (Pet. 22-25) on two

of this Court’s retroactivity cases: Landgraf and

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

520 U.S. 939 (1997). But petitioner also argues (Pet. 25-

27) that the court of appeals’ reasoning conflicts with the

canon of statutory interpretation, described in Clark v.

Martinez, 543 U.S. 371 (2005), that a single statutory

term cannot be construed to have different meanings

based on the factual circumstances of the applicant.

8

Those cases do not support petitioner’s arguments.

In Landgraf, the Court specifically identified “reason-

abie reliance” as a consideration that “offer[s] sound

guidance” in evaluating retroactivity, 511 U.S. at 270,

and it quoted that same proposition from Landgraf in St.

Cyr, 583 U.S. at 321, which was decided well after

Hughes Aircraft. The canon of statutory interpretation

in Clark is inapplicable to the relevant aspect of this

Court’s retroactivity analysis. Clark interpreted a stat-

utory term. See 543 U.S. at 378. The second step of

retroactivity analysis, on the other hand, determines the

temporal reach of a statute only when it has been estab-

lished that the statute contains no provision estabiishing

its retroactivity. See St. Cyr, 533 U.S. at 316-317.

Where the application of a statute would have retroac-

tive effect, retroactivity analysis may require a court to

decline to apply the statute. 7d. at 316. Conversely, in

a case where the same statute would not have retroac-

tive effect, there is no reason not to apply the statute.

See Landgraf, 511 U.S. at 269-270. Whether a statute’s

application would have a retroactive effect necessarily

depends on “transactions” and “considerations already

past” that are associated with a particular case. /bid.

(quotation marks omitted). Nothing in St. Cyr sug-

gested that any alien who was eligible for Section 212(c)

relief before its repeal would remain forever eligible. To

the contrary, the Court held that Section “212(c) relief

remains available for aliens, like respondent, whose con-

victions 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.” 533 U.S. at 326 (emphasis add-

ed).

9

Moreover, the Supreme Court cases petitioner cites

predated this Court’s most recent decision addressing

retroactivity in the immigration context. In Fernandez-

Vargas v. Gonzales, 548 U.S. 30 (2006), the Court explic-

itly discussed St. Cyr and reconfirmed the importance of

reliance. In Fernandez-Vargas, the Court stated that

St. Cyr “emphasized that plea agreements involve a quid

pro quo * * * in which a waiver of constitutional rights

* * * had been exchanged for a perceived benefit

* * * valued in light of the possible discretionary relief,

a focus of expectation and reliance.” Id. at 43-44 (cita-

tions and internal quotation marks omitted). Distin-

guishing the situation of the alien in Fernandez-Vargas

from that of the alien in St. Cyr, the Court remarked

that, “before IIRIRA’s effective date Fernandez-Vargas

never availed himself of [provisions providing for discre-

tionary relief] or took action that enhanced their signifi-

eance to him in particular, as St. Cyr did in making his

quid pro quo agreement.” Jd. at 44 n.10.

Thus, the court of appeals did not err in considering

the prospect of reasonable reliance as part of its “com-

monsense, functional” judgment about retroactivity.

Martin, 527 U.S. at 357.

2. Petitioner contends (Pet. 7-20) that this case of-

fers a suitable vehicle to resolve a conflict among the

circuits as to the continued availability of relief under

former Section 212(c) to aliens who were convicted of

crimes before the enactment of AE DPA and IIRIRA.

First, this case is a poor vehicle because the court below

explicitly “express[ed] no opinion on whether aliens may

prove an impermissible retroactive effect by demon-

strating reliance on other ‘transactions’ or ‘consider-

ations already past’ that do not involve a criminal convic-

tion or the decision to go to trial.” Pet. App. 29a n.28.

10

Second, the disagreement in the analysis of the cir-

cuits is narrow. Nine circuits have declined to extend

the holding of St. Cyr as a general matter to aliens who

were convicted after going to trial rather than pleading

guilty. See Dias v. INS, 311 F.3d 456, 458 (1st Cir.

2002), cert. denied, 539 U.S. 926 (2003); Rankine v.

Reno, 319 F.3d 93, 102 (2d Cir.), cert. denied, 540 U.S.

910 (2003); Mbea v. Gonzales, 482 F.3d 276, 281-282 (4th

Cir. 2007); Hernandez-Castillo v. Moore, 436 F.3d 516,

520 (5th Cir.), cert. denied, 549 U.S. 810 (2006); Keller-

mann Vv. Holder, No. 08-3927, 2010 WL 252264, at *5-*7

(6th Cir. Jan. 25, 2010); United States v. De Horta Gar-

cia, 519 F.3d 658, 661 (7th Cir.), cert. denied, 129 S. Ct.

489 (2008); Hernandez de Anderson v. Gonzales, 497

F.3d 927, 940 (9th Cir. 2007); Hem v. Maurer, 458 F.3d

1185, 1189 (10th Cir. 2006); Pet. App. la-29a (11th Cir.

2009). Two circuits have held that no showing of reli-

ance is required and that new legal consequences at-

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

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

relief. See Atkinson v. Attorney Gen., 479 F.3d 222, 231

(3d Cir. 2007); Lovan v. Holder, 574 F.3d 990, 994 (8th

Cir. 2009) (following Atkinson with little further analy-

sis).!

' Petitioner cites (Pet. 9) the Fourth Circuit’s decision in Olatun? v.

Ashcroft, 387 F.3d 383 (2004), as rejecting a reliance requirement for

retroactivity analysis. The retroactivity issue in Olatun)i, however, in-

volved the loss of an alien’s ability to take brief trips abroad without

subjecting himself to removal proceedings, id. at 395-396, rather than

the loss of access to Section 212(c) relief. Olatun)? itself distinguished

the Fourth Circuit’s prior decision in Chambers v. Reno, 307 F.3d 284

(2002), which involved Section 212(c). See Olatunji, 387 F.8d at 392

(discussing Chambers, 307 F.3d at 293). As petitioner acknowledges

(Pet. 9n.4), even after Olatunjt, the Fourth Circuit has-—-directly con

trary to petitioner’s argument on the merits—continued to hold that

1]

In Atkinson, the Third Circuit retreated from dictum

in Ponnapula v. Ashcroft, 373 F.3d 480 (2004), which

had suggested that an alien who had not been offered a

guilty plea would be unable to establish reliance for pur-

poses of retroactivity analysis, id. at 494. The Third

Circuit in Atkinson held that the repeal of Section 212(c)

should not be construed to apply retroactively to “aliens

who, like Atkinson, had not been offered pleas and who

had been convicted of aggravated felonies following a

jury trial at a time when that conviction would not have

rendered them ineligible for [S]ection 212(c) relief.””

479 F.3d at 229-230.

The Atkinson court's analysis was based on the ob-

servation that this Court “has never held that reliance

on the prior law is an eiement required to make the de-

termination that a statute may be applied retroactively.”

479 F.3d at 227-228. But that result cannot be squared

with the rationale of St. Cyr, which specifically identified

“reasonable reliance” as an important part of the “com-

monsense, functional judgment” in retroactivity analy-

sis, and then explicitly rested its holding on the assess-

ment that it was likely that aliens who pleaded guilty

prior to 1996 had reasonably relied on the possible avail-

ability of Section 212(c) relief. See 533 U.S. at 321-323.

If the Third Circuit’s view that retroactivity analysis

turns on the fact of conviction simpliciter were correct,

then that entire discussion in St. Cyr was superfluous

“IIRIRA’s repeal of § 212(c) did not produce an impermissibly retro-

active effect as applied to an alien convicted after trial.” Mbea, 482 F.3d

at 281.

* The present record does not indicate whether petitioner was of-

fered a plea agreement, and as the court of appeals noted, “aside from

her decision to go to trial, {petitioner} points to no other ‘transactions’

or ‘considerations already past’ on which she relied.” Pet. App. 29a.

12

Furthermore, the Court’s analysis in St. Cyr was fo-

cused on the prospect of detrimental reliance by an alien

who pleaded guilty between 1990, when Congress en-

acted the bar to Section 212(c) relief for aliens who

served more than five years on a sentence for an aggra-

vated felony, and 1996, when Congress repealed Section

212(c) altogether. See St. Cyr, 533 U.S. at 293 (describ-

ing the facts of St. Cyr’s case); id. at 297 (describing

1990 enactment); id. at 323 (describing circumstances of

an alien whose “sole purpose” in plea negotiations was

to “ensure” a sentence of less than five years). During

that six-year period, an alien concerned about preserv-

ing eligibility for relief under Section 212(c) would have

had an incentive to enter into a plea agreement that pro-

vided for a sentence of five years or less, rather than go

to trial and risk a longer (and disqualifying) sentence,

and accordingly may have developed reasonable reliance

interests. Petitioner, by contrast, was convicted prior to

the 1990 amendment. See Pet. App. 39a

In any event, the deviation in the circuits’ analysis is

narrow, because the Third Circuit nonetheless acknow]-

edged that reliance is “but one consideration.” Atkin-

son, 479 F.3d at 231. As a result, its split from the other

circuits’ analysis extends only to whether a determina-

tion of retroactive effect must turn on reliance. No cir-

cuit has denied that a determination of retroactive effect

may be based on reliance. As the Seventh Circuit re-

cently noted, “the distinction between [its] analysis” and

“that of the Third, Eighth, and Tenth Circuits * * * is

one of fine line drawing.” Canto v. Holder, No. 08-4272,

2010 WL 308795, at *5 (Jan. 28, 2010).

3. Petitioner’s alternative argument (Pet. 24-25)—

that if reliance is a significant factor in evaluating retro-

active effect, she could have reasonably relied on the

13

continued availability of Section 212(c) relief in marking

her decision to go to trial rather than plead guilty—is

unpersuasive. As the Seventh Circuit recently ex-

plained, even though St. Cyr recognized that “it is more

than likely that those aliens faced with plea agreements

contemplated their ability to seek [Slection 212(c) relief,

the same logic cannot necessarily be extended to those

aliens convicted at trial” because they did not, as a cate-

gorical matter, “forgo any possible benefit in reliance on

[Slection 212(c).” Canto, 2010 WL 308785, at *6. And no

court has interpreted this Court’s retroactivity analysis

to find a retroactive effect based on new consequences

to every prior decision or action. To the contrary, sev-

eral courts have specifically held that the prior decision

to commit a crime is not protected against application of

Seccion 212(c)’s repeal, whether the alien asserted possi-

ble reliance on not getting caught, or acquittal at trial,

or a sentence that does not bar relief, or the continued

availability of relief at all. See Ponnapula, 373 F.3d at

495-496 & n.14; Rankine, 319 F.3d at 101-102; Armen-

dariz-Montoya v. Sonchik, 291 F.3d 1116, 1121 (9th Cir.

2002), cert. denied, 539 U.S. 902 (2003); Jurado-Guti-

errez v. Greene, 190 F.3d 1185, 1150-1151 (10th Cir.

1999), cert. denied, 529 U.S. 1041 (2000); LaGuerre v.

Reno, 164 F.3d 1085, 1041 (7th Cir. 1998), cert. denied,

528 U.S. 1153 (2000). Indeed, in the decision that this

Court affirmed in St. Cyr, the Second Circuit explained

that “[i]Jt would border on the absurd to argue” that

aliens “might have decided not to commit” crimes “or

might have resisted conviction more vigorously, had

then known that if they were not only imprisoned but.

also * * * ordered deported, they could not ask for a

discretionary waiver of deportation.” St. Cyr v. INS,

229 F.3d 406, 418 (2000) (quoting Jurado-Gutierrez, 190

14

F.3d at 1150; in turn quoting LaGuwerre, 164 F.3d at

1041), aff’d, 533 U.S. 289 (2001). Yet, that is the sort of

result to which petitioner’s alternative interpretation of

retroactive effect would lead.

Petitioner’s circumstances in fact are quite distinct

from those aliens on whom Section 212(c)’s repeal was

held to have a retroactive effect by virtue of reliance

that took some form other than a guilty plea. The alien

in the Ninth Circuit’s decision in Hernandez de Ander-

son took the affirmative step of bringing “herself—and

her criminal convictions—to the INS’s attention by ap-

plying for naturalization,” and, in doing so, had relied

upon the potential availability of suspension of deporta-

tion by waiting to apply for naturalization until she had

accrued the ten years of continuous residence that made

her eligible for such relief. 497 F.3d at 936-937, 941-943.

The alien in the Tenth Circuit’s decision in Hem made

an objectively reasonable decision to forgo a right to an

appeal that would have put him “at risk of being sen-

tenced to a sentence longer than 5 years * * * making

him ineligible for § 212(c) relief” after 1990. 458 F.3d at

1199.°

Petitioner, by contrast, has identified no affirmative

act that she committed in possible reliance on the avail-

ability of Section 212(c) before its repeal. See Pet. App.

29a. Her suggestion (Pet. 25) that a decision to go to

trial rather than plead guilty might, in certain circum-

stances, have been intended to reduce the risk of a sen-

tence that would bar relief under Section 212(c) is irrele-

vant to her case, because the five-year-imprisonment

> The aliens in Atkinson and Lovan were also both convicted after

the 1990 narrowing of Section 212(c) relief on the basis of sentence

length, on which this Court focused in St. Cyr. See p. 12, supra; Atkin

son, 479 F.3d at 224; Lovan, 574 F.3d at 992.

15

ceiling was not added to Section 212(c) until 1990, four

years after her conviction. See p. 2, supra. Petitioner

thus can point to no act or transaction that raises even

the prospect of reasonable reliance.

4. Finally, petitioner also cannot avoid the fact that

the questions she presents involve the retroactive effect

of a statutory repeal that occurred more than 13 years

ago. She identifies 57 court of appeals decisions since

St. Cyr in which she claims “(t]he issue has arisen.” Pet.

14n.6. That list, however, is largely a reflection of the

fact that some immigration cases remain pending for a

long time. Like this case, at least 40 of the cases peti-

tioner cites involved deportation or removal proceedings

that were initiated by the INS before St. Cyr was de-

cided in 2001. Among the remaining cases on peti-

* See Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1124 (9th Cir.

2007) (proceeding began in May 1990), cert. denied, 128 S. Ct. 2499

(2008); Alvarez-Aceves v. Fasano, 150 Fed. Appx. 596, 597 (9th Cir.

2005) (began in March 1996); Armendariz-Montoya v. Sonchik, 291

F.3d 1116, 1118 (9th Cir. 2002) (began in April 1996); Crump v. Reno,

130 Fed. Appx. 500 (2d Cir. 2005) (began in May 1996; based on Gov't

C.A. Br., 2005 WL 2614749, at *4); Walcott v. Chertoff, 517 F.3d 149, 151

(2d Cir. 2008) (began in July 1996); Matian v. Mukasey, 262 Fed. Appx.

753 (9th Cir. 2007) (began in October 1996; based on Gov't C.A. Br.,

2005 WL 5302167); Restrepo v. McElroy, 369 F.8d 627, 680 (2d Cir.

2004) (began in October 1996); Raya-Baez v. INS, 63 Fed. Appx. 381

(9th Cir. 2003) (began in November 1996; based on Gov’t C.A. Br., 2008

WL 21471678, at *4); Johnson v. Holder, 564 F.3d 95, 97 (2d Cir. 2009)

(began in Decemher 1996), petition for cert. pending, No. 09-7909 (filed

Oct. 8, 2009); Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004)

(began in January 1997; based on Gov't C.A. Br., 2003 WL 23336264, at

*5); Chambers v. Reno, 307 F.3d 284, 287 (4th Cir. 2002) (began in April

1997); Serrano-Salcedo v. Ashcroft, 56 Fed. Appx. 803 (9th Cir. 2003)

(began in May 1997; based on Pet. C.A. Br., 2002 WL 32112814, at *3);

Lopez-Lopez v. Mukasey, 285 Fed. Appx. 440 (9th Cir. 2008) (began in

June 1997; based on Gov't C.A. Br., 2006 WL 2450818, at *4); Atkinson

v. Attorney Gen., 479 F.3d 222, 224 (3d Cir. 2007) (began in June 1997);

Singh v. Keisler, 255 Fed. Appx. 710, 712 (4th Cir. 2007) (began in June

1997); Quinones-Saucedo v. Ashcroft, 83 Fed. Appx. 865 (9th Cir. 2003)

(began in August 1997; based on Pet. C.A. Br., 20083 WL 22717151, at

*4); Wilson v. Gonzales, 471 F.3d 111, 113 (2d Cir. 2006) (began in

November 1997); Haque v. Holder, 312 Fed. Appx. 946 (9th Cir. 2009)

(began in 1997; based on Gov't C.A. Br., 2006 WL 5211835, at *7); Mor-

gorichev v. Mukasey, 274 Fed. Appx. 98, 99-100 (2d Cir. 2008) (began

in 1997), cert. denied, 129 S. Ct. 2424 (2009); Carranza-De Salinas v.

Gonzales, 477 F.3d 200, 203 (5th Cir. 2007) (began in 1997); Appel v.

Gonzales, 146 Fed. Appx. 175 (9th Cir. 2005) (began in 1997; based on

Pet. C.A. Br., 2004 WL 5469141, at *5), cert. denied, 549 U.S. 1051

(2006); Manea v. Mukasey, 301 Fed. Appx. 589 (9th Cir. 2008) (began

before February 1998; based on Pet. C.A. Br., 2008 WL 2647725, at *4);

Pugliese v. Gonzales, 174 Fed. Appx. 601 (2d Cir. 2006) (began in March

1998; based on Gov’t C.A. Br., 2005 WL 5166523); Evangelista v. Ash-

croft, 359 F.3d 145, 148 (2d Cir. 2004) (began in April 1998), cert. denied,

543 U.S. 1145 (2005); Rankine v. Reno, 319 F.3d 93, 96 (2d Cir. 2003)

(began in May 1998), cert. denied, 540 U.S. 910 (2003); Thom v. Ash-

croft, 369 F.3d 158, 160 (2d Cir. 2004) (began in June 1998), cert. denied,

546 U.S. 828 (2005); Garcia v. Fasano, 62 Fed. Appx. 816 (9th Cir. 2003)

(began in August 1998; based on Pet. C.A. Br., 2002 WL 32118430, at

*3); Singh v. Mukasey, 520 F.3d 119, 121 (2d Cir. 2008) (began in Janu-

ary 1999); Tecat v. Gonzales, 188 Fed. Appx. 308 (5th Cir. 2006) (began

in March 1999; based on Gov’t C.A. Br. at 5 (No. 05-60480)); Fvange-

lista v. Attorney Gen., 176 Fed. Appx. 306, 308 (8d Cir. 2006) (began in

April 1999); Kelava v. Gonzales, 434 F.3d 1120 (9th Cir.) (began in June

1999: based on Gov’t C.A. Br., 2004 WL 3202731, at *3), cert. denied,

549 U.S. 810 (2006); Trevor v. Reno, 88 Fed. Appx. 445, 445 (2d Cir.

2004) (necessarily began before order of removal issued in July 1999);

Swaby v. Ashcroft, 357 F.3d 156, 158 (2d Cir. 2004) (began in August

1999); Theodoropoulos v. INS, 358 F.3d 162, 165 (2d Cir.) (began in

September 1999), cert. denied, 543 U.S. 823 (2004); Berishaj v. Gon-

zales, 238 Fed. Appx. 275 (9th Cir. 2007) (began in October 1999; based

on Pet. C.A. Br., 2006 WL 2983803); Hem v. Maurer, 458 F.3d 1185,

1187 (10th Cir. 2006) (began in November 1999); Sidhu v. Gonzales, 179

Fed. Appx. 221, 223 (5th Cir.) (began in 1999), cert. denied, 549 U.S. 993

(2006); United States v. Munoz-Recillas, 224 Fed. Appx. 621, 623 (9th

Cir.) (began in 2000), cert. denied, 128 S. Ct. 189 (2007); Ponnapula v.

17

tioner’s list, one involved a post-AEDPA conviction,’ and

only eight involved immigration proceedings that were

initiated after 2002.°

To be sure, there are other cases already in the pipe-

line, but the numbers are diminishing. Petitioner's

amici cite (at 15) statistics about the frequency with

which Section 212(c) relief has been granted in the last

several years. That number declined from 1905 grants

in FY 2004 to 1049 grants in FY 2008. See Exec. Office

for Immigration Review, U.S. Dep’t of Justice, F'Y 2008

Statistical Year Book Table 15, at R3 (2009) <http://

www.justice.gov/eoir/statspub/fy08syb.pdf>. Although

the Statistical Year Book for F'Y 2009 has not yet been

published, the corresponding number for F'Y 2009 is ex-

pected to be 858 grants—reflecting a 55% decline since

Ashcroft, 373 F.3d 480, 485 (3d Cir. 2004) (began in October 2009); J/aw-

Shi Wang v. Ashcroft, 71 Fed. Appx. 624 (9th Cir. 2003) (necessarily be-

gan before charge of removability was sustained in October 2000; based

on Gov't C.A. Br., 2003 WL 21956383, at *3).

° United States v. De Horta Garcia, 519 F.3d 658 (7th Cir.), cert.

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

® Cerbacio-Diaz v. Gonzales, 234 Fed. Appx. 583 (9th Cir. 2007) (pro-

ceeding began in June 2003; based on Gov't C.A. Br., 2006 WL 4032551,

at *7); Gallardo v. Mukasey, 279 Fed. Appx. 484 (9th Cir. 2008) (began

in October 2003; based on Gov't C.A. Br., 2006 WL 2628033, at *4); Es-

quivel v. Mukasey, 543 F.3d 919, 920 (7th Cir. 2008) (began in Septem-

ber 2004); Cruz-Garcia v. Mukasey, 285 Fed. Appx. 446 (9th Cir. 2008)

(began in November 2004; based on Gov’t C.A. Br., 2007 WL 1225610,

at *3), cert. denied, 129S. Ct. 2424 (2009); Nadal-Ginard v. Holder, 558

F.3d 61, 64 (1st Cir. 2009) (began in 2004); Martinez-Murillo v. Mu

kasey, 267 Fed. Appx. 519 (9th Cir. 2008) (began in January 2005; based

on Pet. C.A. Br., 2006 WL 4044532, at *6); Garcia-Ortiz v. Gonzales,

194 Fed. Appx. 513 (10th Cir. 2006) (began in January 2005; based on

Gov't C.A. Br., 2006 WL 6086256, at *4); Prieto-Romero v. Mukasey,

304 Fed. Appx. 512 (9th Cir. 2008) (began in February 2005; based on

Gov't C.A. Br., 2008 WL 486772, at *5).

13

FY 2004. Similarly, according to other unpublished sta-

tistics compiled by the Executive Office of Immigration

Review, the number of applications for Section 212(c)

relief has fallen dramatically. In FY 2004, there were

2617 applications; in FY 2008, there were 1281; and in

FY 2009, there were 576. That reflects a 78% decline

since FY 2004—and a 55% decline since FY 2008. More-

over, because most criminal defendants plead guilty, the

number of aliens affected by the general rule in the cir-

cuits that Section 212(c) does not apply to an alien who

was convicted after a trial would be only a small fraction

of those numbers.’

Thus, there is still every reason to believe that this

is an issue of diminishing prospective importance—and

one that is already of considerably less current impor-

tance than it was when the government sought this

Court’s review in St. Cyr nearly ten years ago. See Pet.

13.

Petitioner’s amici also describe (at 6-11) scenarios in which aliens

with pre-1996 convictions may find themselves placed in removal! pro

ceedings, including instances when they return from travel abroad,

apply for citizenship, or renew their permanent residency or “green”

cards. Because green cards issued after 1989 expire after ten years, see

54 Fed. Reg 47,586 (1989), nearly all lawful permanent residents who

are removable on the basis of pre-IIRIRA convictions have already

been exposed to immigration authorities at some point since 2000—

which further shrinks the poo! of those who might still have new pro-

ceedings initiated against them on the basis of pre-1996 convictions.

19

CONCLUSION

Che petition for a writ of certiorari should be denied

Respectfully submitted.

ELENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

DONALD E. KEENER

ANDREW C. MACLACHLAN

Attorneys