Opposition Brief — Zuluaga-Martinez v. Immigration and Naturalization Service (No. 08-541)

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No. 08-541

Jn the Supreme Court of the Anited States

LEONARDO ZULUAGA-MARTINEZ, PETITIONER

V.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

EDWIN S. KNEEDLER

Acting Solicitor General

Counsel of Record

MICHAEL F.. HERTZ

Acting Assistant Attorney

General

DONALD KEENER

BRYAN BFIER

LIZAS. MURCIA

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

To qualify ‘or cancellation of removal under Section

240A of the limm.gration and Nationality Act, 8 U.S.C.

1229b(a), enacted in 1996, an applicant must establish

that he “has resided in the United States continuously

for 7 years after having been admitted in any status,”

but the period of continuous residence is “deemed to

end” when the applicant “has committed an offense” that

renders the alien inadmissible or removable from the

United States. 8 U.S.C. 1229b(d)(1).

The question presented is whether petitioner’s com-

mission of a controlled-substance offense in 1995, before

he had accrued seven years of continuous residence,

prevents him from qualifying for cancellation of removal

under Section 240A by virtue of the “stop-time rule”

that was enacted in 1996.

(1)

TABLE OF CONTENTS

Page

EEE rs POLE Be Te Be es anes 1

I RE ee nn PR SED wrt Pea Ay gah r(R) beter 1

I rot £3 ya ee cee nley gag ace a eens ware ara 2

I 5's 3h b ary chick Se we Rees mE ea ee 8

EE wig Ca ke beens Re waa adec te haba eae ree 18

TABLE OF AUTHORITIES

Cases:

Abebe v. Mukasey, No. 05-76201, 2009 WL 50120

a i a a coe ee kee eco a anwsees z

Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002) ...... 18

Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) ....... 17

Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002) ........ 17

Davey v. City of Omaha, 107 F.3d 587 (8th Cir. 1997) ... 18

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ...... 16

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

ED ov x ooh nc ee xe rea dcke eernn ke 10

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

Kaiser Aluminum & Chem. Corp. v. Bonjorno,

Re SE oc ace cee kre peak ee rede ie es 11

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

1999), cert. denied, 529 U.S. 1041 (2000) ............ 12

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

denied, 528 U.S. 1153 (2000) ............. eee cece 12

Landgraf v. USI Film Prods., 511 U.S. 244

GN cus ean cas cere eae ee oe 6, 8, 9, 10, 11, 15

Mbea v. Gonzales, 482 F.3d 276 (4th Cir. 2007) ......... 17

Medina v. Gonzales, 404 F.3d 628 (2d Cir. 2005) ....... 13

(ITT)

IV

Cases—Continued: Page

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) ....... 17

Perez v. Elwood, 294 F.3d 552 (3d Cir. 2002) ........... 13

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

as ee NS op Sop hae VN ANE eee ewes eer i5

Rojas-Reyes v. INS, 235 F.3d 115 (2d Cir. 2000) ..... 10, 13

Singh v. Mukasey, 520 F.3d 119 (2d Cir. 2008) ......... 15

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

cert. denied, 546 U.S. 828 (2005) ..................- 15

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

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

Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir.

en rae Uw a earn Bee Ot 12, 18, 14

Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006) ........ 15

Wisniewski v. United States, 353 U.S. 901 (1957) ....... 15

Constitution and statutes:

U.S. Const. Amend. XIV (Equal Pretection) ........... 18

Antiterrorism and Effective Death Penalty Act of

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

Illegal Immigration Reform and Immigrant

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

Div. C, $ 304(b), 110 Stat. 3009-507... ce. 2

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

et seq.:

BO ple 8 ce |: | a re I

8 U.S.C. 1182(e) (1994) (§ 212(¢c)) (repealed

| Lagann as Maser, gar ti gt re ar ye ees pass~m

OR ST ED hha acs cc kalcneeusvesaas ee

DRI EA A STUPID ox shone eo kb y de weu sues 4

Statutes—Continued: Page

a 2,4, 12

ee 2, 6, 10, 13

8 U.S.C. 1229b(a) (§ 240A(a)) .......-. 222... 3, 13

8 U.S.C. 1229b(a)(2) (§ 240A(a)(2)) ......2.22.--.. 5

8 U.S.C. 1229b(a)(3) (§ 240A(ai(3)) ...........-..-. 4

arene Reet) (8 OUEG)) . 2... eee 3

8 U.S.C. 1229b(d)(1) (§ 240A(d)(1)) .. 22.222. ee. 3,5

8 U.S.C. 1229b(d)(1)(B) (§ 240A(d)(1)(B) .......... 8

8 US.C. 1251(aX2KBNMGi) (1994)... eee ewes 12

8 U.S.C. 1254(a)(2) (1994) (repealed 1996) ........ 12

ee easy ks cee sec ececesee seeds 4

In the Supreme Court of the United States

No. 08-541

LEONARDO ZULUAGA-MARTINEZ, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A3-

A55) is reported at 523 F.3d 365. The orders of the

Board of Immigration Appeals (Board) (Pet. App. A56-

A62) and the immigration judge (Pet. App. A63-A65) are

unreported. Prior relevant orders of the Board (Pet.

App. A66-A68, A69-A70, A77-A79, A80-A82) and the im-

migration judge (Pet. App. A71-A76, A83-A87) are also

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 23, 2008. A petition for rehearing was denied on

July 23, 2008 (Pet. App. Al-A2). The petition for a writ

of certiorari was filed on October 21, 2008. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. Section 237 of the Immigration and Nationality

Act (INA), 8 U.S.C. 1227, provides that several classes

of aliens are subject to removal, including those who

“ha[ve] been convicted of a violation of (or a conspiracy

or attempt to violate) any law or regulation of a State,

the United States, or a foreign country relating to a con-

trolled substance.” 8 U.S.C. 1227(a)(2)(B)(i).

Until 1996, former Section 212(c) of the INA, 8

U.S.C. 1182(c) (1994) (repealed 1996), authorized a per-

manent resident alien domiciled in the United States for

seven consecutive years to apply for discretionary relief

from being excluded from the country. By its terms,

Section 212(c) “was literally applicable oniy to exclusion

proceedings,” but it was construed as applying to depor-

tation proceedings as well. INS v. St. Cyr, 533 U.S. 289,

295 (2001).’

In the Antiterrorism and Effective Death Penalty

Act of 1996 (AE DPA), Congress amended Section 212(c)

to make ineligible for discretionary relief any alien pre-

viously convicted of certain offenses, including con-

trolled-substance offenses and aggravated felonies. See

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

year, in the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Congress repealed

Section 212(c) altogether, see Pub. L. No. 104-208, Div.

C, § 304(b), 110 Stat. 8009-597, and replaced it with Sec-

tion 240A of the INA, 8 U.S.C. 1229b, which provides for

a more-limited form of discretionary relief. Section

' The Ninth Circuit recently construed Section 212(¢) in accordance

with its literal terms and held that it is inapplicable to an alien (like peti-

tioner) who is already in the United States and in deportation (or the

equivalent of deportation) proceedings. See Abebe v. Mukasey, No. 05-

76201, 2009 WL 50120 (Jan. 5, 2009) (en banc).

3

240A provides the Attorney General with discretion to

eancel the removal of an alien who:

(1) has been an alien lawfully admitted for perma-

nent 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 fel-

ony.

8 U.S.C. 1229b(a). Section 240A(d) sets forth rules for

computing the time of continuous residence, including

the so-called “stop-time rule”:

(1) Termination of continuous period

For purposes of this section, any period of contin-

uous residence or continuous physical presence in

the United States shall be deemed to end (A) * * *

when the alien is served a notice to appear under

section 1229(a) of this title, or (B) when the alien

has committed an offense referred to in section

1182(a)(2) of this title that renders the alien inadmis-

sible * * * or removable from the United States

under section 1227(a)(2) or 1227(a)(4) of this title,

whichever is earliest.

8 U.S.C. 1229b(d)(1) (emphasis added). The “offenses

referred to in section 1182(a)(2)” include controlled-sub-

stance offenses. See 8 U.S.C. 1182(a)(2)(A)@ UD.

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 on the basis of an agreement to

plead guilty that was made at a time when the resulting

conviction would not have rendered the alien ineligible

for relief under Section 212(c). 533 U.S. at 314-326.

4

2. a. Petitioner, a native and citizen of Colombia,

entered the United States illegally in 1985 (Pet. App.

A5), applied for adjustment of status on May 4, 1988 (id.

at A8, A59-A60), and became a legal permanent resident

on December 1, 1990 (zd. at A5). On April 9, 1995, he

was arrested for possession of heroin. /d. at A5, A74.

In 1998, he was convicted in Massachusetts state court,

based on a guilty plea, of illegal possession of drugs and

three counts of assault and battery, for which he was

sentenced to an 18-month term of imprisonment. /bid.

In March 1999, he was again convicted of illegal posses-

sion of heroin in violation of Massachusetts law, in con-

nection with a 1997 arrest. /d. at A5.

b. On June 25, 1998, the Immigration and Natural-

ization Service (INS) served petitioner with a notice to

appear, charging him with being removable under

8 U.S.C. 1227(a)(2)(B)(i), on account of his having been

convicted of a controlled-substance offense. Pet. App.

A5, A84.° The INS also later charged petitioner with

being removable as an aggravated felon under 8 U.S.C.

1227(a)(2)(A)(iii). Pet. App. A5.

On May 25, 1999, at a hearing before an immigration

judge, petitioner admitted all! of his convictions, and the

immigration judge found petitioner was removable and

ineligible for cancellation of removal under Section

240A(a)(3), 8 U.S.C. 1229b(a)(3), because his 1998 as-

sault and battery convictions were aggravated felonies.

Pet. App. A5-A6, A83-A87. While petitioner’s appeal of

that decision was pending, his assault and battery con-

victions were vacated by a state court because he had

not been advised of the immigration consequences of a

* The INS's immigration-enforcement functions have since been

transferred to the Department of Homeland Security. See 6 U.S.C.

251.

5

conviction before pleading guilty. /d. at A6, A78. Asa

result, the Board granted petitioner’s motion to reopen,

allowing him to pursue his application for cancellation of

removal. /d. at A77-A79.

c. In June 2000, on remand in the reopened pro-

ceeding, the immigration judge held that petitioner was

statutorily ineligible for cancellation of removal, because

he had failed to accrue seven years of continuous lawful

permanent residence, as required by Section 240A(a)(2),

8 U.S.C. 1229b(a)(2). Pet. App. A71-A76. The immigra-

tion judge determined that petitioner’s period of lawful

residence did not begin to accrue until the date he ap-

plied for temporary resident status (May 4, 1988) and

that, by operation of the stop-time rule of 8 U.S.C.

1229b(d)(1), that period ended when he committed his

first controlled-substance offense less than seven years

later (April 9, 1995). Pet. App. A74-A75. The Board

summarily affirmed. /d. at A69-A70.

Petitioner filed a petition for habeas corpus in the

United States District Court for the Western District of

New York, which vacated the removal order and re-

manded the case for consideration of newly discovered

evidence potentially affecting when petitioner was origi-

nally admitted to the United States. See Pet. App. A7,

A68. In April 2002, the immigration judge, after consid-

ering further evidence, denied relief. /d. at A7, A64; see

Certified Admin. R. 249-258. In May 2002, the immigra-

tion judge denied a motion to reconsider. Pet. App. A63-

A65. The Board dismissed petitioner’s appeals of the

denial of relief and of reconsideration, concluding that

petitioner had not accrued the seven years of continuous

residence necessary to be eligible for cancellation of

removal, and noting that he had not been eligible for any

6

discretionary “relief available at the time of his crime.”

Id. at A56-A62.

3. a. Petitioner filed a petition for review in the

United States Court of Appeals for the Second Circuit,

which denied the petition. Pet. App. A38-A55. The court

rejected petitioner’s contention that the stop-time rule

in Section 240A is impermissibly retroactive when ap-

plied to criminal conduct that preceded its enactment.

Applying this Court’s two-step test for retroactivity

analysis in Landgraf v. USI Film Products, 511 U.S. 244

(1994), the court of appeals first held that Congress had

not “expressly prescribed” that the stop-time rule be

applied to criminal offenses committed before I[RIRA’s

enactment. Pet. App. Ai4-Al19.

Proceeding to the second step of the Landgraf analy-

sis, the court held that the stop-time rule would not have

an impermissible retroactive effect if applied to peti-

tioner’s 1995 offense, because it did not attach any new

disability to his past acts. Pet. App. A21-A30. The court

noted that St. Cyr calls for the exercise of a “common-

sense, functional judgment about whether [a] new provi-

sion attaches new legal consequences to events com-

pleted before its enactment.” Jd. at A21 (quoting St.

Cyr, 533 U.S. at 321). It then concluded that “the deter-

minative event” in petitioner’s case was his commission

of a drug offense, rather than the later date of his con-

viction, because petitioner had engaged in no relevant

“secondary conduct” after committing the offense. /d.

at A22. It explained that deportation was not only the

consequence of the retroactive application of the stop-

time rule, but would also have been “the consequence

[petitioner] would have received immediately following

his criminal conduct.” /d. at A23. The court distin-

guished Landgraf by noting that petitioner's case lacks

7

“changed consequences,” because, at the time IIRIRA

was enacted, petitioner had already committed a crime

that “placed him in a category of aliens eligible for de-

portation upon conviction.” /d. at A25-A26.

The court of appeals added that its decision “remains

sound when reasonable reliance is taken into consider-

ation.” Pet. App. A26. Even if petitioner could show

that he had “somehow improbably relied on the absence

of the stop-time rule when he committed” his controlled-

substance offense, “the retroactive application of the

stop-time rule did not alter the legal consequence of his

actions,” and petitioner could not show any “subsequent

reliance,” since he “did not later enter into a transaction

or engage in conduct in reliance on the availability of

discretionary relief.” /d. at A28-A29.

Finally, the court concluded that its decision was

consistent with the “familiar considerations of fair notice

. and settled expectations,” Pet. App. A30 (quoting

St. Cyr, 533 U.S. at 321), because petitioner knew when

he acted that he would be deportable if convicted of a

drug crime.

b. Ina concurring opinion, Judge Straub disagreed

with the court’s conclusion that the retroactive applica-

tion of the stop-time rule to petitioner’s case did not

change the consequences of his criminal act, because

petitioner was not actually convicted before seven years

elapsed. Pet. App. A31-A36. Nevertheless, Judge

Straub concurred with the majority’s denial of relief

because petitioner could not demonstrate the type of

detrimental reliance he believed to be required by cir-

cuit precedent. /d. at A386-A42. Judge Straub then re-

counted “controversy among, within, and surrounding

the courts of appeals” about whether reliance is re-

quired to establish an impermissible retroactive effect,

8

and, if so, whether it should be subjective or objective

reliance. /d. at A36-A55. Finally, he suggested that

“perhaps” the Second Circuit should revisit or review

“whether and to what extent a showing of reliance on the

prior law is required to demonstrate impermissible ret-

roactive effect.” Jd. at A55.

The majority, however, disagreed with Judge

Straub’s characterization of the Second Circuit’s use of

reliance. Pet. App. A26 n.4. Although it acknowledged

that “reliance has played an important role in our retro-

activity cases in the immigration context,” the court ex-

pressly rejected the suggestion that an immigrant “must

show reliance in every case,” and it concluded that other

factors are also relevant (including fair notice and set-

tled expectations). /bid.

ARGUMENT

Petitioner contends (Pet. 15-21) that the court of ap-

peals misapplied this Court’s cases in concluding that

the stop-time rule in Section 240A(d)(1)(B) of the INA,

8 U.S.C. 1229b(d)(1)(B), does not have a retroactive ef-

fect on him. He also asserts (Pet. 21-30) that there is a

conflict in the courts of appeals about whether a showing

of “actual reliance” on prior law is an essential element

of a retroactivity claim under Landgraf v. UST Film

Products, 511 U.S. 244 (1994). The decision below is

correct, and the court of appeals’ holding—which, con-

trary to petitioner’s repeated characterizations, did not

require proof of actual reliance—does not squarely con-

flict with decisions of this Court or of other courts of

appeals.

1. Petitioner first challenges the court of appeals’

application of the second step of the retroactivity analy-

sis prescribed by Landgraf, arguing that it erroneously

9

evaluated the retroactive effect of the stop-time rule

from the point at which he committed a controlled-sub-

stance offense, rather than at a later point in time (when

he did nothing). The court of appeals correctly stated

and reasonably applied this Court’s test for retroactiv-

ity. In any event, petitioner has failed to identify any

conflict with another court of appeals and seeks only

error correction from this Court.

a. Although this Court has recognized a presump-

tion against retroactive legislation, Landgraf, 511 U.S.

at 265, “it is beyond dispute that, within constitutional

limits, Congress has the power to enact laws with retro-

spective effect.” INS v. St. Cyr, 533 U.S. 289, 316

(2001). Where Congress has not expressly addressed

whether a statute should apply retroactively, a court

must decide whether applying the statute “takes away

or impairs vested rights acquired under existing laws, or

creates a new obligation, imposes a new duty, or at-

taches a new disability, in respect to transactions or

considerations already past.” Landgraf, 511 U.S. at 269

(emphasis added; citation and internal quotation marks

omitted). “A statute does not operate ‘retrospectively’

merely because it is applied in a case arising from con-

duct antedating the statute’s enactment or upsets expec-

tations based in prior law.” Jbid. (citation omitted).

Rather, “[t]ne conclusion that a particular rule operates

‘retroactively’ comes at the end of a process of judgment

concerning the nature and extent of the change in the

law and the degree of connection between the operation

of the new rule and a relevant past event.” Jd. at 269-

270. That inquiry “demands a commonsense, functional

judgment about ‘whether the new provision attaches

new legal consequences to events completed before its

enactment.’” St. Cyr, 533 U.S. at 321 (emphasis added;

10

citations and some internal quotation marks omitted).

The Court has also explained that “the legal effect of

conduct should ordinarily be assessed under the law that

existed when the conduct took place.” Landgraf, 511

U.S. at 265 (emphasis added; internal quotation marks

omitted).

Citing Landgraf and St. Cyr, as well as this Court’s

decision in Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939, 947 (1997), the court of appeals

held that petitioner could not show “that the new law

attaches a new disability on past acts,” and it thus held

that the application of the stop-time rule to his applica-

tion for cancellation of removal was not impermissibly

retroactive. Pet. App. A22-A23. Accordingly, the court

of appeals rejected petitioner’s contention that, for an

alien who was both convicted and put into removal pro-

ceedings after IIRIRA’s effective date, the application

of the stop-time rule at the point he committed the rele-

vant crime was impermissibly retroactive.

b. Petitioner contends (Pet. 16-21) that the court of

appeals misapplied the second step of Landgraf’s retro-

activity analysis by using an “unorthodox approach”

involving “hypothetical scenarios.” He claims that he

“had the right to seek a waiver [of deportation under

former Section 212(c)] so long as the conviction and fi-

nal order of removal were entered after” he had ac-

quired seven years of residency. Pet. 17 (first emphasis

added). That claim is flawed.

Petitioner incorrectly assumes that he had a legiti-

mate expectation of relief from deportation or removal,

but he could not even apply for cancellation of removal

under Section 240A until it took effect on April 1, 1997.

See generally Rojas-Reyes v. INS, 235 F.3d 115, 120 (2d

Cir. 2000). Thus, the stop-time rule did not prevent him

11

from qualifying for a form of relief that had been avail-

able to him when he committed his crime in 1995. Cf. St.

Cyr, 533 U.S. at 321-325.

Petitioner also incorrectly assumes (Pet. 16-21)—as

did Judge Straub in his concurring opinion (Pet. App.

A31-A36)—that the court of appeals’ decision depended

upon the “hypothetical possibility” of petitioner’s convic-

tion, removal proceedings, and order of removal, before

he acquired his seven years of residency for either sus-

pension of deportation or waiver under Section 212(c).

In fact, the court of appeals correctly determined, on the

facts, that on the relevant date of the determinative

event—the commission of the drug offense on April 9,

1995—petitioner was not eligible for any type of relief,

and that the only consequence that attached to his actual

conduct would be his ultimate deportability. /d. at A22-

A23. As this Court stated in Landgraf, “[t]he legal ef-

fect of conduct should ordinarily be assessed under the

law that existed when the conduct took place.” 511 U.S.

at 265 (emphasis added) (quoting Kaiser Aluminum &

Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990)).

Thus, the court of appeals correctly rejected any sug-

gestion that its retroactivity analysis should be based on

the period after his commission of the criminal offense,

when petitioner did not engage in any relevant conduct

during that period. Pet. App. A22-A26.°

* Petitioner suggests (Pet. 26 n.9) that, even judging from the point

at which he committed his 1995 crime, he may well have been relying on

the looming seven-year threshold. He does not, however, cite any

courts of appeals that disagree with the decision below, which indicated

it would apply its “reliance” analysis to secondary conduct (such as a de-

cision whether to apply for relief or to plead guilty) but not to the pri-

mary conduct of committing a crime. Pet. App. A29 (“{I]t makes no

sense at all to ask whether an alien, in committing a drug trafficking

12

Both petitioner (Pet. 17-18) and the concurring opin-

ion below (Pet. App. A33-A35) argue that, if he had hy-

pothetically been convicted and put into removal pro-

ceedings prior to IIRIRA, under the statute that applied

at the time he committed his offense, petitioner would

have been eligible to continue accruing time toward the

seven-year residency requirement to apply for Section

212(c) relief.‘ But petitioner is applying for cancellation

offense, acted with an intention to preserve [his or her] eligibility for

relief under § 212(c).”) (citation and internal quotation marks omitted)

(second brackets in original). In fact, other courts of appeals have

echoed the same sentiment. See, e.g., Valencia-Alvarez v. Gonzales,

469 F.3d 1319, 1327 (9th Cir. 2006) (“{U]nlike the plea at issue in St.

Cyr, where the alien arguably bargained for something on the basis of

existing immigration law, Valencia-Alvarez cannot assert that he relied

on existing immigration law when he decided to commit a crime.”);

Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1150-1151 (10th Cir. 1999),

cert. denied, 529 U.S. 1041 (2000); LaGuerre v. Reno, 164 F.3d 1035,

1041 (7th Cir. 1998), cert. denied, 528 U.S. 1153 (2000).

* Inthe court of appeals, both the majority and Judge Straub treated

the seven-year-residency requirement for eligibility for “suspension of

deportation” as being interchangeable with the seven-year-residency

requirement of Section 212(c). In fact, petitioner would not have been

eligible for suspension of deportation at any time before or after

IIRIRA. To be eligible for suspension of deportation, an alien, like peti-

tioner, convicted of a controlled-substance offense under & U.S.C.

1251(a)(2)(B)(i) (1994) (reeodified at 8 U.S.C. 1227(a)(2)(B)(i)), was re-

quired to have a physical] presence in the United States for a continuous

period of “not less than ten years immediately following the commis-

sion of an act, or the assumption of a status, constituting a ground for

deportation.” 8 U.S.C. 1254(a)(2) (1994) (repealed 1996) (emphasis

added). Thus, in petitioner’s case, because he did not commit. the con-

trolled-substance offense until April 9, 1995, and did not plead guilty to

that. offense until May 1998 (Pet. App. A5), and only then became de-

portable for having been convicted of a controlled-substance offense (2d.

at A5-A8), petitioner would have been ineligible for the discretionary

relief of suspension of deportation upon commencement of his proceed-

13

of removal under Section 240A rather than for Section

212(c) relief. See, e.g., id. at A78. He was not convicted

of his controlled-substance offense until May 1998, and

was put into removal proceedings in June 1998, long

after the April 1, 1997 effective date of IIRIRA. /d. at

A5. Under the applicable law in 1998, therefore, cancel-

lation of removal under 8 U.S.C. 1229b(a), with its

seven-year residency requirement, was the only relief

available to petitioner, since both Section 212(c) and

suspension of deportation had been repealed. See, e.g.,

Perez v. Elwood, 294 F.3d 552, 560-561 (3d Cir. 2002)

(because an alien’s deportability is triggered by his con-

viction, he is not “even potentially eligible for [Section]

212(c) relief until after he was convicted”); see generally

Medina v. Gonzales, 404 F.3d 628, 634 n.4 (2d Cir. 2005);

Rojas-Reyes, 235 F.3d at 120.

c. Petitioner does not even claim that there is any

conflict in the courts of appeals on the stop-time ques-

tion involved in this case. Cf. Pet. 18 n.2 (citing two

district-court opinions about retroactive application of

the stop-time rule). In fact, the only other court of ap-

peals decision to address circumstances similar to peti-

tioner’s—where the criminal conduct of an applicant for

cancellation of removal pre-dated IIRIRA, but the con-

viction and the removal proceedings both came after

IIRIRA—the Ninth Circuit held that the application of

the stop-time rule at the point when a pre-IIRIRA of-

ings on June 25, 1998, or even upon the Board’s final decision on Nov-

ember 5, 2003. Cf., e.g., Valencia-Alvarez, 469 F.3d at 1327-1328 (find-

ing no impermissible retroactive effect in the denial of pre-IIRIRA

relief because the alien had not been in the United States long enough

to qualify for discretionary relief frum deportation at the time he com-

mitted the underlying offense, at the time he was convicted, or when

ITRIRA became effective).

14

fense was committed was not impermissibly retroactive.

See Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1327-

1330 (9th Cir. 2006).

Especially in the absence of a conflict, petitioner pro-

vides no reason to conclude that the alleged error in ap-

plying retroactivity analysis in the narrow class of cases

involving the seven-year-residency test in the context of

post-ITIRIRA convictions for pre-IIRIRA crimes pres-

ents such an important federal question that it warrants

review by this Court.

2. Petitioner also argues that the Second Circuit has

“eases which actually require reliance in order to find an

impermissible retroactive effect” (Pet. 22), that those

cases are inconsistent with this Court’s cases (Pet. 25-

27), and that “[tJhere is a clear split” in the courts of

appeals “as to whether reliance must be established to

demonstrate that a law has a retroactive effect” (Pet.

27). There is, however, no conflict between the court of

appeals’ reasoning and this Court’s precedents, and this

case in any event would be an inappropriate vehicle for

resolving any disagreement about the use of reliance in

retroactivity analysis.

a. Petitioner repeatedly contends (Pet. 15, 21, 25-26

& n.8) that the court of appeals erred by “requir[ing]”

him to demonstrate actual, detrimental reliance on the

pre-ITRIRA state of the law in order to show an imper-

missible retroactive effect. The court of appeals, how-

ever, specifically rejected that characterization of its

holding. See Pet. App. A26 n.4 (“[W]e have never stated

that petitioners must show reliance in every case.’’).

Moreover, the court also stated that it would still reach

the same result even if petitioner had actually “relied on

the absence of the stop-time rule when he committed the

15

cffense.” /d. at A29. That alone suffices to make fur-

ther review of this question unwarranted in this case.”

b. When stripped of petitioner’s recharacterization

of its reasoning, the court of appeals’ opinion—which

took account of reliance, but did not make it dispositive

—was obviously not inconsistent with this Court’s cases.

In fact, its reasoning was not even inconsistent with peti-

tioner’s own account of this Court’s cases. Petitioner

concedes (Pet. 23) that “detrimental reliance” may “be

illustrative” in certain cases—and that this Court’s opin-

ion in St. Cyr “emphasized the detrimental reliance by

the respondent and other similarly-situated individuals.”

By taking “reasonable reliance * * * into consider-

ation” (Pet. App. A26), along with fair notice and settled

expectations (7d. at A30), the court of appeals here was

faithfully following this Court’s lead. See Landgraf, 511

U.S. at 270 (“Any test of retroactivity * * * is unlikely

to classify the enormous variety of legal changes with

* The actual-reliance rule that petitioner infers from prior Second

Circuit cases does not stem from cases involving circumstances like his

own. In the cases petitioner cites (Pet. 25), the Second Circuit dealt

with aliens who had not only committed their crimes before [IRIRA but

who also pieaded guilty or were otherwise convicted before IIRIRA.

See Singh v. Mukasey, 520 F.3d 119 (2008); Wilson v. Gonzales, 471

F.3d 111 (2006); Thom v. Ashcroft, 369 F.3d 158 (2004), cert. denied, 546

U.S. 828 (2005); Rankine v. Reno, 319 F.3d 93, cert. denied, 540 U.S.

910 (2003). As the court of appeals noted here, the only conduct of

petitioner’s that preceded ITRIRA was his commission of a controlled-

substance offense. After that, he “did no more than passively await the

outcome of his prosecution” (Pet. App. A22), which took place after

[IRIRA’s effective date.

Of course, to the extent that petitioner relies upon disagreement

between the majority of the court of appeals and Judge Straub about

the import or applicability of prior circuit precedent, this Court “ioes

not sit to resolve such intra-circuit disputes. See Wisniewski v. United

States, 353 U.S. 901, 902 (1957) (per curiam).

16

perfect philosophical clarity. However, * * * familiar

considerations of fair notice, reasonable relianee, and

settled expectations offer sound guidance.”); St. Cyr, 533

U.S. at 321 (“As we have repeatedly counseled, the judg-

ment whether a particular statute acts retroactively

should be informed and guided by familiar consider-

ations of fair notice, reasonable reliance, and settled ex-

pectations.”) (citations and internal quotation marks

omitted).

This Court recently confirmed the importance of reli-

ance in St. Cyr’s retroactivity analysis. In Fernandez-

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

scribed St. Cyr as having “emphasized that plea agree-

ments 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 48-44 (internal quotation marks omitted). Distin-

guishing the situation of Fernandez-Vargas from that of

St. Cyr, the Court remarked that, “before ITRIRA’s ef-

fective date Fernandez-Vargas never availed himself of

{provisions providing for discretionary relief] or took

action that enhanced their significance to him in particu-

lar, as St. Cyr did in making his quid pro quo agree-

ment.” Jd. at 44 n.10.

c. Nor is there any direct conflict between the deci-

sion below and those of other courts of appeals. While

petitioner cites (Pet. 27-29) cases dealing with the ques-

tion of whether reliance is necessary to show a retroac-

tive effect, and if so, whether it should be subjective or

objective reliance, none of those cases involved applica-

tion of the stop-time rule to pre-IIRIRA offenses, nor

circumstances (like petitioner’s) in which the relevant

criminal conviction postdated IITRIRA’s effective date.

17

Instead, they generally involved the retroactive effect of

the repeal of Section 212(c), as applied to aliens who had

committed crimes and had pleaded guilty or had been

convicted before it was repealed. One exception is the

Fourth Circuit’s decision in Olatunji v. Ashcroft, 387

F.3d 383 (2004) (cited at Pet. 29), which involved the loss

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

subjecting himself to removal proceedings, id. at 396,

rather than loss of access to Section 212(c) relief. But

Olatunji predated this Court’s decision in Fernandez-

Vargas reiterating the relevance of reliance as a factor

in retroactivity analysis. Olatwnji also illustrates the

importance of comparing cases involving the same statu-

tory provisions, since Olatunji itself (which eschewed

using reliance as a component of retroactivity analysis)

distinguished a prior Fourth Circuit decision that had

considered reliance in the context of Section 212(c)’s

repeal. Jd. at 392 (discussing Chambers v. Reno, 307

F.3d 284, 293 (4th Cir. 2002); see also Mbea v. Gonzales,

482 F.3d 276, 281-282 (4th Cir. 2007) (post-Olatunji de-

cision, following Chambers and holding that the repeal

of Section 212(c) “did not produce an impermissibly ret-

roactive effect as applied to an alien convicted after

[pre-IIRIRA] trial,” because, by deciding to go to trial

rather than plead guiity, the alien had not relied on the

potential for discretionary relief).°

6

Among the 11 other cases petitioner cites (Pet. 27-29 & n.11), only

four did not involve the relevance of pre-repeal convictions to Section

212(c)’s repeal. Like Olatwnji, Camans v. Gonzales, 500 F.3d 872 (9th

Cir. 2007), involved brief trips abroad, though the court required a

showing of objective reliance, which was satisfied in that ease by a pre-

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

(7th Cir.), cert. denied, 1298S. Ct. 489 (2008), presented a question about

the retroactive repeal of Section 212(c), though it involved a post-

18

Moreover, as noted above, the decision below did not

hold that reliance is a necessary factor in proving an

impermissibly retroactive effect. By treating reliance as

a relevant (though not necessary) factor, and siding

against petitioner even on the assumption that he could

show actual reliance (Pet. App. A26 n.4, A29), the court

of appeals’ reasoning has obviated the significance of

any conflicts about the role of reliance for purposes of

this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

EDWIN S. KNEEDLER

Acting Solicitor General

MICHAEL F. HERTZ

Acting Assistant Attorney

CGeneral

DONALD KEENER

BRYAN BEIER

LIZAS. MURCIA

Attorneys

JANUARY 2009

AEDPA, pre-IIRIRA conviction. In Brooks v. Ashcroft, 288 F.3d 1268

(11th Cir, 2002), the court considered an Equal Protection challenge

and found that it had no jurisdiction to address retroactivity. See 7d. at

1274 & n.6. Davey v. City of Omaha, 107 F.3d 587 (8th Cir. 1997), arose

outside the immigration context.