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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0896%3A2. Public record. Not legal advice.