Cespedes v. Atty Gen USA ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-21-2007
    Cespedes v. Atty Gen USA
    Precedential or Non-Precedential: Precedential
    Docket No. 06-1550
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    Recommended Citation
    "Cespedes v. Atty Gen USA" (2007). 2007 Decisions. Paper 497.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/497
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 06-1550
    CRISTIAN CESPEDES-AQUINO
    Petitioner
    vs.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    ____________
    ON PETITION FOR REVIEW OF AN ORDER DATED
    BY THE BOARD OF IMMIGRATION APPEALS
    (BIA No. A36-816-374)
    ____________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    July 10, 2007
    Before: SLOVITER, WEIS and ROTH, Circuit Judges
    (Filed August 21, 2007)
    ______________
    Sandra L. Greene, Esquire
    50 Mount Zion Road
    York, PA 17402
    Attorney for Petitioner
    Peter D. Keisler, Esquire
    Assistant Attorney General
    Civil Division
    James E. Grimes, Esquire
    1
    Senior Litigation Counsel
    William C. Minick, Esquire
    United States Department of Justice
    Office of Immigration Litigation
    P.O. Box 878, Ben Franklin Station
    Washington, D.C. 20044
    Attorneys for Respondent
    _______________
    OPINION
    WEIS, Circuit Judge.
    Under section 212(c) of the Immigration and Nationality Act, 
    8 U.S.C. § 1182
    (c), the Attorney General had discretion to provide leniency to certain permanent
    legal residents charged with deportable offenses. One treatise writer has described that
    section as one of the most “complex and frequently litigated sections of the immigration
    law.” 6 Charles Gordon et al., Immigration Law and Procedure § 74.04[2] (rev. ed.
    2006). Even though Congress repealed the provision in 1996, courts continue to confront
    lingering legal issues, especially with respect to the retroactive effect of the repeal.
    Petitioner in the case before us contends that he is entitled to apply for relief
    under the provision even though he was convicted of criminal offenses years after section
    212(c) was repealed. See § 304(b) of the Illegal Immigration Reform and Responsibility
    Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C., 110 stat. 3009-546 (effective
    2
    April 1, 1997).   We do not agree and will deny review.
    Petitioner is a citizen of the Dominican Republic who was admitted to the
    United States as a permanent resident in 1979. In November 1989, he pleaded guilty in a
    New York state court to the felony of attempted criminal sale of a controlled substance.
    He was sentenced to a five-year term of probation.
    On July 20, 1990, petitioner was once again indicted in a New York state
    court for the criminal sale of a controlled substance. The state offered him a plea
    agreement of two to four years imprisonment on June 6, 1990, but he refused to accept it.
    After petitioner failed to appear for his criminal proceedings, a bench
    warrant was issued for his arrest on October 11, 1990. He was returned on the warrant on
    December 13, 1995. He absconded again and a second bench warrant was issued on
    January 22, 1996. He was not returned on that warrant until June 2003.
    On January 5, 2004, petitioner pleaded guilty in the state court to the felony
    of sale of a controlled substance in violation of New York Penal Law section 220.34. He
    was sentenced to a term of three and a half to seven years incarceration.
    In 2003, the Department of Homeland Security issued a Notice to Appear
    on the basis of the petitioner’s first conviction and later amended the charges to include
    the second offense. At a hearing before an IJ on April 14, 2005, petitioner argued that his
    second conviction, which is an aggravated felony under INA section 237(a)(2)(A)(iii), 
    8 U.S.C. § 1227
    (a)(2)(A)(iii), did not make him ineligible to apply for consideration under
    3
    section 212(c) because he rejected a plea agreement before the repeal at a time when he
    would have been eligible for relief.
    The IJ and BIA both held that the repeal did not have an impermissible
    retroactive effect because petitioner was not entitled to rely on the availability of section
    212(c). He had absented himself from the New York criminal proceedings for some 13
    years and did not plead guilty until well after the repeal of that section. Petitioner appeals
    that determination.
    Briefly stated, before 1996, the Attorney General had broad discretion
    under section 212(c) to grant qualified permanent legal residents relief from deportation
    under certain circumstances. The history of that provision and its evolution are set out in
    some detail in INS v. St. Cyr, 
    533 U.S. 289
     (2001), and need not be reiterated here.
    Effective April 1, 1997, section 304(b) of IIRIRA repealed section 212(c) in its entirety.
    Much of the current litigation has been concerned with how that development affects
    aliens who accepted or rejected a plea offer for, or were convicted of, criminal acts that
    are grounds for deportation.
    In St. Cyr, the Supreme Court addressed the retroactivity issue as it affected
    an alien who pleaded guilty before the effective date of the repeal at a time when he was
    eligible for section 212(c) relief, but was not placed into deportation procedures until
    after the repeal. St. Cyr, 
    533 U.S. at 293
    . The Court concluded that Congress had not
    unmistakably intended the repeal to operate retroactively and that it had an impermissible
    4
    retroactive effect as applied to a person in St. Cyr’s circumstances. 
    Id. at 320-26
    .
    The Court observed that aliens who pleaded guilty likely relied on the
    availability of section 212(c) relief in deciding to forego their right to a trial. 
    Id. at 325
    .
    The Court held, therefore, “that § 212(c) relief remains available for aliens, like
    respondent, whose convictions were obtained through plea agreements and who,
    notwithstanding their convictions, would have been eligible for section 212(c) relief at the
    time of the plea under the law then in effect.” 1 Id. at 326.
    The next year Perez v. Elwood, 
    294 F.3d 552
     (3d Cir. 2002), presented us
    with another variation on retroactivity. Perez was found guilty by a jury in January 1997
    of criminal conduct that had occurred in 1992 and was sentenced in June 1997. 
    Id. at 555
    . Relying on an ex post facto theory, he first argued that, even though his conviction
    occurred after the repeal of section 212(c), it was unconstitutional to deny him eligibility
    to apply for section 212(c) relief because he was convicted for conduct that occurred
    before the repeal. 
    Id. at 556
    . We rejected that argument because its ex post facto premise
    did not apply in civil cases.
    We noted that the jury verdict of guilt in Perez’s criminal case occurred
    some three months before the repeal of section 212(c) became effective, but the sentence
    1
    The immigration authorities issued new regulations in 2004 that adopted
    the view that the critical time for determining eligibility under this rule was the date when
    the prosecution and the alien agreed to a plea stipulation rather than when it was formally
    presented to a court. See 
    8 C.F.R. § 1003.44
    ; 
    8 C.F.R. § 1212.3
    .
    5
    was not imposed until two months after the repeal. We concluded that under the
    definition of a “conviction” created by section 322 of IIRIRA the petitioner’s conviction
    took effect on the date the sentence was imposed, not when the jury handed down its
    verdict. 
    Id. at 560-62
    .
    We explained that, because an alien’s deportability is triggered by his
    conviction, he is not “even potentially eligible for § 212(c) relief until after he . . . is
    convicted.” Id. at 560-61. The repeal, therefore, could not have a retroactive effect on
    aliens like Perez who were ineligible for relief when the repeal took effect. Id. We
    concluded that aliens who are convicted for an aggravated felony after the effective date
    of IIRIRA are ineligible for section 212(c) relief on any theory. Id.
    In Ponnapula v. Ashcroft, 
    373 F.3d 480
     (3d Cir. 2004), we were confronted
    with a situation in which the alien rejected a plea offer, went to trial, and was convicted
    years before section 212(c)’s repeal. We concluded that the repeal was impermissibly
    retroactive as applied to such aliens. 
    Id. at 496
    . We based that holding on our conclusion
    that, as in St. Cyr, the aliens there had a reliance interest in the availability of section
    212(c) relief. 
    Id.
    We explicitly stated in Ponnapula, however, that our holding was limited to
    cases where the conviction occurred before the effective date of section 212(c)’s repeal
    and that the holding did not impair Perez’s precedential value. 
    Id.
     at 494 n.12. The
    petitioner in the case before us has treated Ponnapula more expansively than it reads by
    6
    arguing that it applies to all cases in which a petitioner was offered a plea agreement
    before the repeal.
    In the next relevant case, Atkinson v. Attorney General, 
    479 F.3d 222
     (3d
    Cir. 2007), petitioner was not offered a plea agreement and was convicted years before
    the effective date of section 212(c)’s repeal. We concluded that the permissibility of a
    retroactive application of the repeal does not rest solely on a petitioner’s reliance upon the
    continued availability of section 212(c) relief. 
    Id. at 229
    . Rather, the proper inquiry was
    whether retroactively applying the repeal effectively imposed new detrimental
    consequences to prior convictions. 
    Id. at 230
    . We decided that since the petitioner’s
    conviction occurred before section 212(c)'s repeal at a time when he was eligible for
    section 212(c) relief, he retained that right after the repeal. 
    Id.
    Atkinson, therefore, is consistent with Ponnapula where the conviction
    occurred before the repeal of section 212(c) and is clearly distinguishable from Perez
    where the conviction occurred afterward.2
    We are hesitant to announce a brightline rule, particularly in immigration
    cases. Here, however, our line of precedent generally shows that if an alien’s conviction
    2
    Hernandez v. Gonzales, 
    437 F.3d 341
     (3d Cir. 2006), is not inconsistent.
    That case dealt with the repeal of a similar form of relief under INA § 244(a) called
    suspension of deportation. Id. at 346. We denied the alien relief from deportation even
    though his conviction occurred before the repeal of section 244(a). Id. at 353.
    Hernandez, however, was ineligible for relief at the time of his conviction because he did
    not meet the additional residential requirements for eligibility under section 244(a).
    7
    occurred before the repeal of section 212(c) and he is at that time otherwise eligible for
    relief, he retains that eligibility despite the repeal. On the other hand, if the underlying
    conviction occurs after the repeal, there has been no retroactive effect and section 212(c)
    relief is not available.3
    The issue before us, therefore, is straightforward. We need only determine
    whether the conviction occurred before or after the repeal of section 212(c). Here, the
    conviction clearly occurred afterward. The parties’ discussions about whether petitioner
    Cespedes-Aquino waived his right to section 212(c) relief by absconding or was entitled
    to rely on the availability of that relief are beside the point. Petitioner is ineligible to
    claim a benefit under the statute because his conviction in 2004 was after the repeal of
    section 212(c).
    Accordingly, the petition for review will be denied.
    3
    We do not address the problem that might occur if an alien is convicted
    before the repeal of section 212(c), but is granted a new trial and is convicted for the
    second time after the repeal.
    8