Opposition Brief — Morgororichev v. Holder (No. 08-771)

No. 08-771

Jn the Supreme Court of the Anited States

————

SERGEI MORGORICHEYV, PETITIONER

Vv.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

MICHAEL F. HERTZ

Acting Assistant Attorney

Gre neral

DONALD E. KEENER

ALISON R. DRUCKER

ADA E. BusqQut

Attorneys

De partie ni of Justice

Wusihington, D C’. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

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

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

which had provided for a discretionary waiver of depor-

tation, by making it unavailable to aliens convicted of

aggravated felonies and then by repealing it altogether.

In INS v. St. Cyr, 533 U.S. 289 (2001), this Court held

that the repeal of Section 212(c) did not apply retroac-

tively to an alien previously convicted of an aggravated

felony through a plea agreement at a time when the con-

viction would not have rendered the alien ineligible for

discretionary relief. The questions presented are:

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

an alien who was convicted of an aggravated felony after

trial and whe does not claim to have relied in any way on

the potential availability of discretionary relief under

Q Ta 919-2.

Section 212(¢).

2. Whether, for purposes of the retroactive avail-

ability of relief under former Section 212(c), it violates

the equal protection component of the Due Process

Clause to distinguish between an alien who is removable

on the basis of a conviction that followed a guilty plea

and one whose conviction occurred after a jury trial.

3. Whether 8 C.F.R. 1212.3(g) violates the equal

protection component of the Due Process Clause by

allowing criminal aliens to seek Section 212(c) relief if

they were placed in deportation proceedings before they

were made ineligible for such relief.

4. Whether it violates the Sixth Amendment right to

a jury trial to distinguish, for purposes of the retroactive

availability of Section 212(c) relief, between criminal

aliens who pleaded guilty and those who went to trial.

(1)

TABLE OF CONTENTS

Page

I IN 0 ca-k 29d ee sees FREE SA eR od Re Se ]

NE ect Alton. A Sateen ee ea co To ae ene 1

Ae ce: ga. clare Ler, SiR te Soe ieee ee ae eee 2

po Tee eT re ee Tree Tro TC rT ere corer Tee 7

I cies: tn = fh sonata Sr eed) Siege Poe ees ee 16

TABLE OF AUTHORITIES

Cases:

Aguilar v. Mukasey, 128 8. Ct. 2961 (2008) ............. 7

Armendanz-Montoya v. Sonchik, 539 U.S. 902 (2003) ... 8

Atkinson v. Attorney Gen. of the United States,

OTS FB Zoe (0 Cir. BOOT) cnn sci ev ccc tc ccwecsces 11

Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002) ...... 13

Bugajewitz v. Adams, 228 U.S. 585 (1913) ............. 15

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

Ce EE, oe oc De tals ous a Woe bai k 8 oe O48 s 12

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

Corbitt v. New Jersey, 489 U.S. 212 (1978) ............. 16

Dias v. INS, 311 F.3d 456 (1st Cir. 2002),

cert. denied, 539 U.S. 926 (20038) ............c0e00e- 10

Ferguson v. United States Att’y Gen., No. 08-10806,

2009 WL 824434 (11th Cir. Mar. 31, 2009) ........ 10, 11

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

Heckler v. Mathews, 465 U.S. 728 (1984) .............. 13

Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006) ........ 1]

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998),

cert. denied, 526 U.S. 1004 (1999) ................... 6

Hernandez-Castillo v. Gonzales, 549 U.S. 810 (2006) ..... 7

(111)

Cases—Continued: Page

Hernandez-Castillo v. Moore, 436 F.3d 516 (Sth Cir.),

cert. denied, 549 U.S. 810 (2006) ................05. 10

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

a Dt EEA ee ae ere eee 11

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) .......... 15

INS v. St. Cyr, 583 U.S. 289 (2001) ............ 2,3, 7,3,9

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ... 6, 8,9

Martin v. Hadix, 527 U.S. 343 (1999) ............... 8, 10

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

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

TR TR Laie ars 0 Ara eee oe 10, 11

Pena-Rosario v. Reno, 83 F. Supp. 2d 349

EA I ers eis ane aww once s Coe Se4 os 5

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

cert. denied, 540 U.S. 910 (2003) ...............05. 6, 10

Reyes v. McElroy, 543 U.S. 1057 (2005) .............00. 8

Stephens v. Ashcroft, 543 U.S. 1124 (2005) .........0..... 7

Thom v. Gonzales, 546 U.S. 828 (2005) ..............05. 7

Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) .......... 13

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

(7th Cir.), cert. denied, 129 S. Ct. 489 (2008) ......... 11

United States v. Podlog, 35 F.3d 699 (2d Cir. 1994),

cert. denied, 513 U.S. 1135 (1995) ................... 4

veo

United States v. Zuniga-Guerrero, 460 F.3d 73:

(6th Cir. 2006), cert. denied, 549 U.S. 1145

NN cy a ee kan a oes de de wie acne oni k ll

Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006) 2.2.2... 12

Zamora Vv. Mukasey, 128 S. Ct. 2051 (2008) 2.00.0 7

Constitution, statutes and regulations: Page

U.S. Const.:

Amend. V (Due Process Clause) ..................- 13

ss a EE 15

Antiterrorism and Effective Death Penalty Act

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

nie a gigs ws and Sw os w we oO 2,3

Illegal Immigration Reform and Immigrant

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

Div. C, $ 304(b), 110 Stat. 3009-597 .................. 2

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

et seq.:

mrs, MUPECMOEP CRO) .. 2... ccc cc ecccvecs 12

8 U.S.C. 1101(a)(43)(B) ... 2

8 U.S.C. 1182(c) (1994) (§ 212(c)) ........... passim

8 U.S.C. 1227(ay(2)an) .. ay ariel Ss

rere =

SN ED oc cc acs ces ccewsescuns ee

8 U.S.C. 1251(aX2K AX ii) (1994) ..............-.--- 4

8 U.S.C. 1251(a)(2)(B)(i) (1994) ..............- <=

trae SERCO NE(IGBS) ..... 2.2... 22 ccc ess ae

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B,

ey ae ww-s Wx as ae oo oe wwe ge 5

OE, Eo ee ccc ewe newevcuun ve ee

LS aS) er

18 U.S.C. 924(e)(2) (1988)

J. et” aM iteetece.ce ee

VI

Regulations—-Continued: Page

8 C.F.R::

ES re 3,6, 13

I cae cee ceecesevusevceses 3

Miscellaneous:

Section 212(c) Relief for Aliens with Certain

Criminat Convictions Before April 1, 1997,

69 Fed. Reg. 57,826 (2004) ............. Ree arate 3

Seg er 3

a ane er s

Section 212(c) Relief for Certain Aliens in

Deportation Proceedings Before April 24, 1996,

Go Ped. Mee. G456 (2001) .......... cee eee. ry eae

te gag ie aa ¢ 50s 4 4 5's 044% 0 0s 3

(OO Sy Sco. Pret Tee

Jn the Supreme Court of the Ginited States

No. 08-771

SERGEI MORGORICHEV, PETITIONER

U.

ERIC H. HOLDER, «R., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORAR!

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. 3a-Ya)

is not published in the Federal Reporter but is reprinted

in 274 Fed. Appx. 98. The order of the district court

(Pet. App. 10a-1la) is unreported. The opinions of the

Board of Immigration Appeals (Pet. App. 12a-14a), and

the immigration judge (Pet. App. 15a-19a) are unre-

ported.

JURISDICTION

The court of appeals entered its judgment on April

24,2008. A petition for rehearing was denied on August

20, 2008 (Pet. App. la-2a). The petition for a writ of cer-

tiorari was filed on November 17, 2008. The jurisdiction

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

2

STATEMENT

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

Nationality Act (INA), 8 U.S.C. 1182(¢) (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 deportation and exclusion proceedings. See NS

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

In 1996, in the Antiterrorism and Effective Death

Penalty Act of 1996 (AE DPA), Pub. L. No. 104-132,

§ 440(d), 110 Stat. 1277, Congress amended Section

212(c) to make ineligible for discretionary relief aliens

previously convicted of aggravated felonies. See St. Cyr,

533 U.S. at 297 n.7. Later that year, in the Illegal Immi-

gration Reform and Immigrant Responsibility Act of

1996 (IRIRA), Pub. L. No. 104-208, Div. C, § 304(b),

110 Stat. 3009-597, Congress repealed Section 212(c¢) in

its entirety, and replaced it with Section 240A of the

INA, 8 U.S.C. 1229b, which now provides for a form of

discretionary relief Known as cancellation of removal

that is not available to many criminal aliens, including

those who have been convicted of an aggravated felony

(which, as relevant to this case, includes a drug-traffick-

ing crime). See 8 U.S.C. 1101(a)(48)(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(e). 533 U.S. at

314-326. In particular, the Court in St. Cyr explained

3

that, before 1996, aliens who decided “te forgo their

right to a trial” by pleading guilty to an aggravated fel-

ony “almost certainly relied” on the chance that, not-

withstanding their convictions, they would still have

some “likelihood of receiving § 212(c) relief” from depor-

tation. /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 St. Cyr deci-

sion. See Section 212(c) Relief for Aliens with Certain

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

57,826 (2004). In its response to comments received on

its proposed rule, the Department noted cases holding

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

for [Slection 212(c) relief under St. Cyr,” and then

stated that it had “determined to retain the distinction

between ineligible aliens who were convicted after crimi-

nal trials, and [potentially eligible aliens] convicted

through plea agreements.” /d. at 57,828. That deter-

mination 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).

The 2004 regulations also retained a previously

adopted regulation, which had—following decisions of

the majority of the courts of appeal—allowed aliens to

apply for Section 212(c) relief without regard to the limi-

tations imposed by AEDPA § 440(d), as long as their

“deportation proceedings were commenced before the

Immigration Court before April 24, 1996," AE DPA’s

date of enactment. 8 C.F.R. 1212.3(2); see also 69 Fed.

Reg. at 57,832; Section 212(c) Relief for Certain Aliens

in Deportation Proceedings Before April 24, 1996, 66

Fed. Reg. 6436, 6437-6438 (2001).

q

2. Petitioner is a native of the former Soviet Union

who, pursuant to a 1983 adjustment of status, was

deemed admitted to the United States for lawfui perma-

nent residence in 1980. Pet. App. 16a. In 1993, a jury

found petitioner guilty of conspiring to distribute and

possession with intent to distribute heroin, in violation

of 21 U.S.C. 846. Pet. App. 5a. Petitioner was sentenced

to 63 months of imprisonment to be followed by four

years of supervised release. /bid. His conviction and

sentence were affirmed on appeal. See United States v.

Podlog, 35 F.3d 699, 705-707 (2d Cir. 1994), cert. denied,

513 U.S. 1135 (1995). With good-time credit, he ulti-

mately served approximately 41 months in prison. C.A.,

App. 9, 23, 26.

Before petitioner had finished serving his term of

imprisonment, the former Immigration and Naturaliza-

tion Service (INS) commenced deportation proceedings

against petitioner—issuing an order to show cause in

October 1996 and serving it on him in February 1997—

alleging that he was deportable as an aggravated felon

and drug offender. C.A. App. 30-31; Pet. App. 5a, 12a;

see 8 U.S.C. 1251(a)(2)(A)(ii) and (B)(i) (1994). The de-

portation proceedings were later transformed into re-

moval proceedings by the issuance of a post-IIRIRA

Notice to Appear. Pet. App. 13an_1.

In May 1997, after a hearing, the immigration judge

(1.J) found petitioner removable on both grounds

charged. Pet. App. l6a-17a. The LJ noted that petition-

er had not sought relief from removal but proceeded to

conclude that no relief was available anyway. /d. at l6a.

In particular, the IJ concluded that petitioner was not

eligible for rehef under former Section 212(c) because he

had been convicted of an aggravated felony, and that he

was not eligible for withholding of removal because his

o

aggravated-felony conviction had resulted in a sentence

of imprisonment of more than five years. /d. at 17a-18a.

Petitioner appealed that decision to the Board of Im-

migration Appeals (BIA), which, on June 9, 1998, dis-

missed his appeal concerning eligibility for relief from

removal. Pet. App. 12a-l4a. It specifically concluded

that he was not eligible for withholding of deportation in

light of his aggravated-felony conviction. /d. at 13a.’

3. Petitioner filed a habeas corpus petition in the

United States District Court for the Eastern District of

New York, contending that the BIA had erred in apply-

ing AEDPA and IIRIRA to find him ineligible for Sec-

tion 212(c) relief on the basis of his 1998 conviction. Pet.

App. 6a. The district court granted the habeas petition

on June 20, 2000. Jd. at 10a-lla. Tt relied Gd. at ila) on

Pena-Rosario v. Reno, 83 F. Supp. 2d 349 (F.D.N-Y.

2000), which held that the restrictions in AE DPA and

IIRIRA on Section 212(c) relief did not apply to “aliens

whose criminal conduct predated those statutes’ enact-

ment.” /d. at 365.

The government appealed the district court’s deci-

sion to the United States Court of Appeals for the Sec-

ond Circuit. Pet. App. 6a. While that appeal was pend-

ing, Congress enacted the REAL ID Act of 2005. Pub. L.

No. 109-18, Div. B, 119 Stat. 302, which general: y varred

the use of habeas petitions to review orders of removal,

but allowed pending habeas petitions to be converted

into petitions for review in the courts of appeals.

§ 106(a) and (¢c), 119 Stat. 310,311. The court of appeals

thus vacated the district court’s decision and treated the

' The BIA sustained petitioner's appeal with regard to the country

of removal, Pet. App. 13a-14a—an issue that is unrelated to the ques-

tions presented to this Court by the petition for a writ of certiorari.

6

government’s appeal as if petitioner had filed a petition

for review of the BIA’s order of removal. Pet. App. 7a.

4. The court of appeals denied the petition for re-

view in an unpublished order dated April 24, 2008. Pet.

App. 3a-9a. The court held (id. at 8a) that it was bound

by its decision in Rankine v. Reno, 319 F.3d 93 (2d Cir.),

cert. denied, 540 U.S. 910 (2003), which concluded that

“the repeal of § 212(c) relief does not have an imper-

missibly retroactive effect when applied to petitioners.

We agree with our sister circuits that the lack of detri-

mental reliance on § 212(c) by those aliens who chose to

go to trial puts them on different footing than aliens like

St. Cyr,” id. at 102. The court of appeals recognized

that petitioner challenged Rankine as being in conflict

with both the retroactivity analysis in Landgraf v. US]

Film Products, 511 U.S. 244 (1994), and in violation of

principles of equal protection. Pet. App. 7a-S8a. It ex-

plained, however, that Rankine had addressed both of

these issues. /d. at Sa.

The court of appeals also rejected petitioner’s argu-

ment that 8 C.F.R. 1212.3(g¢) violates equal protection by

distinguishing between criminal aliens on the basis of

whether their deportation proceedings commenced be-

fore or after AEDPA was enacted. Pet. App. 8a. The

court explained that the regulation “is a permissible

implementation of Congress’s intention in passing

{AE DPA], which, as we have held, was precisely to ef-

fectuate this line-drawing.” /brd. (citing Henderson v.

INS, 157 F.3d 106, 150 (2d Cir. 1998) (holding that

AE DPA’s restrictions on Section 212(c) relief do not

apply to criminal aliens whose immigration proceedings

were pending on the date of enactment), cert. denied,

526 U.S. 1004 (1999)). The court rejected the suggestion

that “the government might have manipulated the tim-

ad

‘

ing of proceedings in order to prevent aliens from re-

ceiving 212(c) relief” and specifically noted that there

was no evidence here of “any unreasonable delay in the

commencement of [petitioner’s] deportation proceed-

ings.” Jbid. Finally, the court concluded that it had

“considered all of [petitioner’s] claims and f[ou]nd them

to be without merit.” Jd. at Qa.

ARGUMENT

1. Petitioner contends (Pet. 11-21) that the court of

appeals’ decision that he is unable to seek relief under

former Section 212(c)—because he went to trial rather

than pleading guilty to an aggravated felony—conflicts

with this Court’s retroactivity analysis. He also con-

tends (Pet. 21-30) that this Court’s intervention is need-

ed to resoive a conflict in the circuits. The unpublished

decision of the court of appeals does not warrant further

review, because petitioner’s arguments lack merit. The

courts of appeals have correctly recognized that reli-

ance—either actual or assumed—is a significant factor

to be considered for purposes of retroactivity analysis,

although it may be given different weight in different

circuits. Furthermore, the underlying question involves

the retroactive effect of a statutory repeal that occurred

more than 12 years ago, and this Court has denied peti-

tions urging a similar extension of JNS v. St. Cyr, 533

U.S. 289 (2001), in a number of prior cases. See, e.g.,

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

Mukasey, 1288S. Ct. 2051 (2008); Hernandez-Castillo v.

Gonzales, 549 U.S. 810 (2006); Thom v. Gonzales, 546

U.S. 828 (2005); Stephens v. Ashcroft, 543 U.S. 1124

8

(2005); Reyes v. McElroy, 543 US. 1057 (2005); Armen-

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

a. Petitioner’s argument (Pet. 11-21) that the deci-

sion below conflicts with this Court’s retroactivity analy-

sis by considering whether petitioner relied on Section

212(c) before it was repealed lacks merit. As this Court

has explained, in determining whether a statute has a

retroactive effect, a court must make a “commonsense,

functional judgment” that “should be informed and guid-

ed by ‘familiar considerations of fair notice, reasonable

reliance, and settled expectations.’” Martin v. Hadix,

527 U.S. 348, 357-358 (1999) (quoting Landgraf v. USI

Film Prods., 511 U.S. 244, 270 (1994)) (emphasis added).

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

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

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

benefit, defendants waive several of their constitutional

rights (including the right to atrial) 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.” /d. at

323. And because, in the Court’s view, aliens in St. Cyr’s

position “almost certainly relied upon thle] likelihood [of

receiving § 212(c) relief] in deciding whether to forgo

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

~ A similar question is presented in the petition for a writ of cer

tiorari in Cruz-Garcia v. Holder, No. 08-878 (filed Jan. 2, 2009).

9

tion of any possibility of § 212(c) relief by IIRIRA has

an obvious and severe retroactive effect.” /d. at 325.

In asserting that the court of appeals misinterpreted

St. Cyr, petitioner principally relies (Pet. 17-21) on this

Court’s decision in Landgraf, supra. Of course Land-

graf specifically mentioned “reasonable reliance,” 511

U.S. at 270. Moreover, Landgraf pre-dates the decision

in St. Cyr, which specifically addressed the availability

of relief under former Section 212(c), as well as this

Court’s decision in another immigration case, Fernan-

dez-Vargas v. Gonzales, 548 U.S. 30 (2006), which explic-

itly discussed St. Cyr and confirmed the importance

of reliance in its analysis. In Fernandez-Vargas, the

Sourt stated that St. Cyr “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 43-44 (internal quotation marks and citations

omitted). Distinguishing 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 discretionary relief] or took action that

enhanced their significance to him in particular, as St.

Cyr did in making his guid pro quo agreement.” Jd. at

44 n.10.

Petitioner argues that retroactivity analysis here

should focus on the fact that, even if an alien did not rely

on Section 212(c), when his eligibility for discretionary

relief from deportation is reduced, he suffers “a punitive

measure that serves to increase liability for past con-

duct.” Pet. 19. The amendiment and later repeal of Sec-

tion 212(c) in 1996, however, were neither punitive nor

10

designed to increase liability for past criminal conduct.

Rather, they reflected Congress’s judgment regarding

the character of aliens who should be afforded an oppor-

tunity to remain in the United States at the present time

notwithstanding their past criminal conduct. Moreover,

petitioner’s characterization of the repeal of Section

212(c) would have applied in St. Cyr itself, which means

that, under petitioner’s view, the “reasoning and analyti-

cal approach” in St. Cyr were “superfluous by half,” and

its discussion of reliance “was a wholly unnecessary and

gratuitous academic exercise.” Ferguson v. United

States Att'y Gen., No. 08-10806, 2009 WL 824434, at *12

(11th Cir. Mar. 31, 2009).

Thus, the court of appeals did not err in considering

reasonable reliance as part of its “commonsense, func-

tional” judgment about retroactivity. Martin, 527 U.S.

at 357.

b. Petitioner contends (Pet. 21-30) that there is a

conflict among the circuits as to the availability of Sec-

tion 212(c) relief to aliens convicted of crimes prior to

the enactment of AEDPA and IIRIRA. The disagree-

ment is quite narrow, however. Nine circuits have de-

clined to extend the holding of St. Cyr generally to al-

iens 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 98, 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,

' Petitioner calls (Pet. 23) the Fourth Circuit’s ease law “unclear,”

because that court’s decision in Olaturj. v. Ashcroft, 387 F.3d 383

(2004), rejected a reliance requirement for retroactivity analysis, which

petitioner says “seems to directiy contradict” (Pet. 24) the holding in

Chambers v. Reno, 307 F.5d 284 (4th Cir. 2002), which found that the

1!

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

States v. Zunriga-Guerrero, 460 F.3d 733, 737-739 (6th

Cir. 2006), cert. denied, 549 U.S. 1145 (2007); United

States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir.),

cert. denied, 129 S. Ct. 489 (2008); Hernandez de Ander-

son v. Gonzales, 497 F.3d 927, 940 (9th Cir. 2007); Hem

v. Maurer, 458 F.3d 1185, 1189 (10th Cir. 2006); Fergu-

son, 2009 WL, 824434, at *13 (11th Cir. 2009). Only the

Third Circuit has held that no showing of reliance is re-

quired and that new legal consequences attached by

IITRIRA to an alien’s conviction were sufficient to pre-

vent the BIA from precluding Section 212(c) relief. See

Atkinson v. Attorney Gen. of the United States, 479 F.3d

222, 231 (2007). The existence of that one outher con-

cerning the interpretation of a statutory provision re-

pealed more than 12 years ago does not warrant this

Court’s review.

Although petitioner stresses (Pet. 28) that the courts

of appeals have “generated different approaches” to

analyzing the retroactivity of the 1996 amendments to

and repeal of Section 212(c), his case would be an inap-

propriate vehicle for addressing nearly all of the distine-

tions among those different approaches. As the court of

appeals noted (Pet. App. 7a n.3), petitioner does not con-

tend that he could establish reliance by virtue of a deci-

repeal of Section 212(c) was not impermissibly retroactive as applied to

aliens who went to trial. The Fourth Circuit, however, apparently does

nut perceive such a conflict. [ts opinion in Olatunji distinguished

Chambers onthe ground that “ITRIRA was not substantively retroac-

tive to Chambers’ relevant past conduct” (¢.e., “his decision to go to

trial”). 587 F.3d at 392. As petitioner acknowledges (Pet. 24), even af-

ter Olatun)2, the Fourth Circuit has continued to hold that “IT RIRA’s

repeal of § 212(c) did not produce an impermissibly retroactive effect

as applied to an alien convicted after trial.” Mbea, 482 F.3d at 281.

12

sion to “delay[] seeking 212(c) relief,” which could war-

rant relief in the Second or Fifth Circuits. See Wilson

v. Gonzales, 471 F.3d 111, 122 (2d Cir. 2006); Carranza-

de Salinas v. Gonzales, 477 F.3d 200, 210 (5th Cir. 2007).

Nor does petitioner suggest that he could establish some

“other reliance interests” or even a form of assumed,

“objectively reasonable reliance” (Pet. 27), which might

warrant relief in the Ninth or Tenth Circuits. Nor--

despite petitioner’s repeated references to Congress’s

amendments to the definition of “aggravated felony”

(Pet. 3, 10, 25, 28; Pet. App. 21a-32a)—does his case

present any question about whether an alien is pre-

cluded from establishing reliance if his offense of convic-

tion “did not become [a] deportable offense[] until later.”

Pet. 28. Petitioner’s own conviction for conspiring

to distribute and possession with intent to distribute

heroin, in violation of 21 U.S.C. 846, indisputably made

him deportable well in advance of his 1993 conviction,

and he remains so today. See & U.S.C. 1101(a)(43),

1251(a)(4)(B) (1988); 18 U.S.C. 924(e)(2) (1988); 8 U.S.C.

1227(a)(2)(ili); see also Pet. 31. Accordingly, even if the

issues petitioner identifies otherwise warranted review,

this case would not be a suitable vehicle for their consid-

eration.

2. Petitioner contends (Pet. 30-34) that the court of

appeals’ decision violates the equal protection compo-

nent of the Due Process Clause because it distinguishes

“between classes of aliens who pleaded guilty and those

who were convicted at trial,” a distinction he portrays as

“wholly irrelevant to the purpose of any of the statutes

at hand.” Pet. 32, 33.

Petitioner does not suggest that there is any dis-

agreement among the courts of appeals on that question.

In fact, one case he cites (Pet. 28) for a different propo-

13

sition expressly rejected an equal protection claim about

ILRLRA’s retroactive repeal of Section 212(c) on the

ground that there is “a rational basis in differentiating

between a defendant who pleads guilty versus a defen-

dant who goes to trial.” Brooks v. Ashcroft, 283 F.3d

1268, 1274 (11th Cir. 2002).

Moreover, the court of appeals correctly rejected pe-

titioner’s equal protection argument, because he was not

“similarly situated” with aliens the court found to be

eligible for Section 212(c) relief. See Tuan Anh Nguyen

v. INS, 533 U.S. 53, 63 (2001). Petitioner is not similarly

situated vis-a-vis an alien who surrendered an impor-

tant legal right by pleading guilty in presumptive reli-

ance upon existing eligibility under the law at the time.

As this Court has previously recognized, the “protection

of reasonable reliance interests” is sufficient to survive

equal protection review even under the heightened scru-

tiny used for equal protection challenges to gender-

based classifications. Heckler v. Mathews, 465 U.S. 728,

746 (1984). It follows a fortior: that reliance can provide

the basis for a legitimate distinction in the immigration

context, where a more deferential approach prevails.

Indeed, petitioner effectively concedes that point by

acknowledging (Pet. 33) that his equal protection analy-

sis depends on an evaluation of allegedly disparate

treatment “outside of the context of * * * retroactivity

analysis.”

3. Petitioner calls (Pet. 33) his equal protection chal-

lenge to8 C.F.R. 1212.3(g) a “far clearer” one. He con-

tends (Pet. 33-35) that the regulation violates equal pro-

tection by making AE DPA’s amendments to the scope of

Section 212(c) generally inapplicable to criminal aliens

whose deportation proceedings commenced before the

April 24, 1996 enactment of AEDPA. Although peti-

14

tioner concedes that “a procedural line must be drawn at

some point” (Pet. 35), he does not specify any line that

would be more reasonable than one that permits an alien

to seek a discretionary waiver of deportation if that

waiver would have been available to him when the de-

portation proceedings began—much less establish that

the line the regulation draws is altogether irrational."

In fact, as the Department of Justice twice explained in

adopting and later retaining the regulation, the line

drawn in the regulation reflected the view of several

courts of appeals that had rejected Attorney General

Reno’s application of AEDPA’s restrictions even to

aliens who were already in deportation proceedings but

who had not already been granted final Section 212(c)

relief before AEDPA’s enactment. See 69 Fed Reg. at

57,832; 66 Fed. Reg. at 6437-6439. Petitioner does not

identify any circuit conflict about the regulation’s consti-

tutionality, and no further review of the question is war-

ranted.”

* Petitioner suggests (Pet. 34) that the date removal proceedings

commence Is inappropriate because it “is exclusively determined by the

government.” He also asserts (Pet. 34-35 n.12) that an unspecified

“survey of 212(c) case law” may indicate that “the former INS fre-

quently delayed the service and filing of charging documents * * *

until after the passage of AFDPA and ITRIRA.” But he does not cite

any instance involving intentional delays or otherwise refute the court

of appeals’ express finding (Pet. App. 8a) that there was no evidence of

“any unreasonable delay in the commencement of | petitioner’s | depor-

tation proceedings’ —which were initiated while he was still imprisoned

for his aggravated-felony conviction.

* Petitioner does “note” (Pet. 34) that the date proceedings com-

mence is determined differently in different circuits. Any distinction,

however, between the date an Order to Show Cause or a Notice to App-

ear was issued and the date on which it was served on the alien is com-

15

4. Finally, petitioner contends (Pet. 35-38) that the

Sixth Amendment right to a jury trial is violated by al-

lowing those who pleaded guilty to apply for Section

212(c) relief while barring relief to those who went to

trial. Petitioner identifies no conflict on this question;

indeed, he identifies no court that has addressed the

question (since the court of appeals in this case evidently

did not believe it warranted separate treatment in its

opinion rejecting “all of [petitioner’s] claims” as being

“without merit,” Pet. App. 9a).

Petitioner’s claim is founded on erroneous assump-

tions. He argues that barring him from Section 212(c)

relief impermissibly “punishes him for a second time” by

eliminating “any possible relief from removal” on the

basis of “conduct. for which he already served several

years in prison.” Pet. 36. Leaving aside the fact that

petitioner served a term of imprisonment for conspiring

to distribute heroin and possessing heroin with intent to

distribute it—and not for opting to go to trial—it is sim-

ply not true that barring him from discretionary with-

holding of removal operates as a “punishment.” As this

Court has long explained, “Congress has power to order

the deportation of aliens whose presence in the country

it deems hurtful,” and deportation is not ‘a punish-

ment,” even when it is based on facts that might consti-

{ute acrime. Bugajewilz v. Adams, 228 U.S. 585, 591

(1913); see INS v. Lopez-Mendoza, 468 U.S. 1032, 1039

(1984) (“The purpose of deportation is not to punish past

transgressions but rather to put an end to a continuing

violation of the immigration laws.”). Furthermore, even

assuming that the unavailability of relief from deporta-

pletely irrelevant to petitioner's case, in which all of those events

occurred after AE DPA’s date of enactment.

16

tion could be seen as a penalty for not pleading guilty,

this Court has also explained that the government is

constitutionally permitted “to extend a proper degree of

leniency ir return for guilty pleas.” Corbitt v. New Jer-

sey, 439 U.S. 212, 223 (1978).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

MICHAEL F. HERTZ

Acting Assistant Attorney

General

DONALD E. KEENER

ALISON R. DRUCKER

ADA E. BOSQUE

Atiorneys

APRIL. 2009