United States v. De Horta Garcia, Jos ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2060
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE DE HORTA GARCIA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 185—Barbara B. Crabb, Chief Judge.
____________
ARGUED JANUARY 29, 2008—DECIDED MARCH 13, 2008
____________
Before BAUER, KANNE and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Jose De Horta Garcia, then a
permanent resident alien, was deported in 1996 because
he had been convicted of a drug trafficking crime.
This case involves his second illegal re-entry into the
country after deportation. During his first prosecution
for illegal re-entry, he challenged the validity of his
deportation order on the grounds that he was denied his
right to seek a discretionary waiver of deportation
under former INA § 212(c), 8 U.S.C. § 1182(c) (1995)
(repealed), arguing that the repeal of discretionary
waiver should not have been applied to prevent him from
2 No. 07-2060
applying for the waiver. The District of Alaska rejected his
contention and De Horta Garcia did not appeal. He raised
the argument again in this prosecution and the district
court rejected it based on circuit precedent. We affirm.
Background
De Horta Garcia first came to the United States from
Mexico in 1976. He married a United States citizen in 1983
and became a lawful permanent resident. By November
1995, De Horta Garcia had separated from his wife and
moved to Alaska where he was arrested in a drug sting.
In February 1996, De Horta Garcia waived his speedy
trial rights, ALASKA R. CRIM. P. 45, extending the state’s
time to prosecute him into June 1996. In June 1996 he
pleaded guilty to attempted misconduct involving a
controlled substance. He appeared, without counsel, at a
group deportation hearing in December 1996 and was
ordered deported under INA § 212(a)(2)(C); 8 U.S.C.
§ 1182(a)(2)(C), which at that time made excludable any
alien who had been an illicit trafficker of any controlled
substance. He was released at the Mexican border the
next day.
The timing of De Horta Garcia’s guilty plea and deporta-
tion were very unfortunate for him. Had he pleaded guilty
and appeared at a deportation hearing only a few months
earlier, before April 23, 1996, he would have had the
right to petition the Attorney General for relief from
deportation. See INA § 212(c); 8 U.S.C. § 1182(c) (1995)
(repealed); see also INS v. St. Cyr, 533 U.S. 289, 295-96
(2001). When Congress passed the Antiterrorism and
Effective Death Penalty Act, effective April 23, 1996,
however, it amended § 212(c) so that it no longer applied
No. 07-2060 3
to aliens, including De Horta Garcia, made excludable
for most controlled substance offenses. See INA § 212(c);
8 U.S.C. §§ 1182(c), 1251(a)(2)(B) (1996). The IJ at De Horta
Garcia’s deportation hearing apparently concluded that
AEDPA’s modification of § 212(c) applied to aliens who
offended and were arrested before the modification but
convicted after it, and so did not tell De Horta Garcia
that he had a right to petition the Attorney General for
relief from deportation.
About a year after he was deported, De Horta Garcia
was discovered in Alaska and charged with illegal re-entry
after deportation. See 8 U.S.C. § 1326(a), (b)(2). The District
Court for the District of Alaska initially dismissed the
indictment, finding that the original deportation rested on
an impermissible retroactive application of § 212(c) in
violation of the Due Process Clause. On the government’s
motion for reconsideration, though, the district court
reversed itself based on binding Ninth Circuit precedent.
De Horta Garcia was ultimately convicted of illegal re-
entry, and he did not appeal. At the end of his prison term
in June 2002, he was deported to Mexico again.
After the district court’s initial dismissal of the indict-
ment, De Horta Garcia moved to reopen his original
deportation proceedings and stay his deportation order.
The IJ denied De Horta Garcia’s motion before the dis-
trict court reconsidered its dismissal. The IJ’s ruling was
based on BIA precedent, as well as De Horta Garcia’s
failure to move to reopen within the 90 days allowed by
8 C.F.R. § 3.23. Nothing in the record suggests that
De Horta Garcia appealed the IJ’s ruling.
After being deported a second time, De Horta Garcia
found his way back into the United States once again. This
4 No. 07-2060
time he was arrested in Wisconsin in September 2006 on
retail theft charges. After being referred to federal authori-
ties, he was again indicted for illegal re-entry after de-
portation, 8 U.S.C. § 1326(a), (b)(2), and again argued
that his original deportation was invalid because he was
denied the right to petition the Attorney General for
discretionary relief from deportation under § 212(c). The
district court rejected this argument based on LaGuerre v.
Reno, 164 F.3d 1035, 1041 (7th Cir. 1998), which con-
cluded that AEDPA’s bar against discretionary waivers
applied retroactively to aliens, like De Horta Garcia,
who offended before its passage, but were convicted after
its passage. De Horta Garcia pleaded guilty, but reserved
his right to appeal the retroactivity issue.
Analysis
De Horta Garcia begins by conceding, as he must, that
the district court properly relied upon LaGuerre and goes
on to predict that “in all likelihood,” we will not revisit
our prior precedent. But counsel for De Horta Garcia
makes a hard argument harder by not fully presenting
his arguments for reconsidering LaGuerre in his brief.
Instead counsel includes in his short appendix the brief
he filed in the district court and states in his appellate
brief that it is “incorporated herein.” We normally refuse
to consider such incorporations because “[e]ven when a
litigant has unused space . . ., incorporation is a point-
less imposition on the court’s time.” DeSilva v. DeLeonardi,
181 F.3d 865, 867 (7th Cir. 1999).
In the context of a litigant’s failure to provide a trans-
cript under Federal Rule of Appellate Procedure 10(b), we
have held that where “meaningful review is possible,”
No. 07-2060 5
we may exercise our discretion and rule on the merits.
United States v. Santiago-Ochoa, 447 F.3d 1015, 1018-19
(7th Cir. 2006). Because meaningful review is possible—but
just barely—in this case and because we hesitate to thwart
De Horta Garcia’s stated objective to challenge our prece-
dent in the Supreme Court, we address the arguments on
the merits.
Before analyzing De Horta Garcia’s primary argument,
though, we must analyze a procedural bar that he cannot
overcome under circuit precedent. Section 1326(d) allows
a collateral attack of a deportation order only upon a
showing that
(1) the alien exhausted any administrative remedies
that may have been available to seek relief against
the order;
(2) the deportation proceedings at which the order
was issued improperly deprived the alien of the
opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d). Although De Horta Garcia can arguably
meet the first two conditions, we have previously held
that an alien in his position cannot meet the third.
To show fundamental unfairness, De Horta Garcia must
show, first, a violation of due process, and second, that he
was prejudiced by the removal proceedings. See Santi-
ago-Ochoa, 447 F.3d at 1019. If De Horta Garcia truly lost
his opportunity to apply for § 212(c) relief that might
have been granted, then he might have been able to
show that he was prejudiced, i.e., that judicial review
“would have yielded him relief from deportation.” See
United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir.
6 No. 07-2060
1994). But, we have joined the majority of circuits in
holding that due process does not encompass a “right to
be informed of eligibility for—or to be considered for—
discretionary relief.” Santiago-Ochoa, 447 F.3d at 1020; but
see United States v. Copeland, 376 F.3d 61, 71 (2d Cir. 2004)
(failure to inform alien of right to discretionary relief can
be fundamentally unfair); United States v. Ubaldo-Figueroa,
364 F.3d 1042, 1049-50 (9th Cir. 2004) (same). Thus, under
this circuit’s precedent, the violation De Horta Garcia
contends occurred at his deportation hearing did not
make the deportation order “fundamentally unfair,” and
he may not collaterally attack it in this prosecution. See
Santiago-Ochoa, 447 F.3d at 1020.
Finally, even if De Horta Garcia could steer clear of
the roadblocks preventing him from collaterally attacking
his deportation order, his attack itself is also foreclosed
by circuit precedent. In LaGuerre, we explained that the
change to § 212(c) would apply retroactively unless it
would disturb reasonable expectations. LaGuerre, 164 F.3d
at 1041. But we concluded that applying the new law
retroactively to aliens like De Horta Garcia would not
disturb reasonable expectations because “[i]t would border
on the absurd to argue that these aliens might have de-
cided not to commit drug crimes . . . had they known that
if they were not only imprisoned but also, when their
prison term ended, ordered deported, they could not ask
for a discretionary waiver of deportation.” Id. We have
held that retroactive application is impermissible because
it would disturb reasonable expectations in only two
situations: (1) when an alien had conceded deportability
before repeal in reliance on the possibility of § 212(c) re-
lief, Reyes-Hernandez v. INS, 89 F.3d 490, 492-93 (7th Cir.
1996), and (2) when an alien had pleaded guilty to the
No. 07-2060 7
underlying offense before repeal partly in reliance on the
possibility of relief, Jideonwo v. INS, 224 F.3d 692, 700
(7th Cir. 2000). In both cases, we required a showing of
specific facts demonstrating actual reliance. Id.; Reyes-
Hernandez, 89 F.3d at 492. In St. Cyr, the Supreme Court
held that the repeal of § 212(c) did not apply retroactively
to any alien who pleaded guilty before its passage, 533
U.S. at 321, 323-24, but we have not read that case as
altering the actual reliance requirement. The rule in this
circuit remains that relief under § 212(c) is not available
to any alien whose removal proceeding began after
repeal except to those who affirmatively abandoned
rights or admitted guilt in reliance on § 212(c) relief.
Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).
Because De Horta Garcia cannot show such affirmative
reliance, his primary argument is foreclosed by circuit
precedent.
De Horta Garcia notes, however, that other circuits have
taken alternative approaches to the reliance question. First,
some circuits have applied St. Cyr to aliens who did not
plead guilty or concede deportability before enactment,
but did take some affirmative action in their prosecution
that evidenced reliance on § 212(c) before enactment. E.g.,
Restrepo v. McElroy, 369 F.3d 627, 634-35 (2d Cir. 2004);
Ponnapula v. Ashcroft, 373 F.3d 480, 494-96 (3d. Cir. 2004).
Second, two circuits, the Third and the Tenth have criti-
cized the majority of circuits for requiring a showing of
actual detrimental reliance and have only required objec-
tively reasonable reliance. Id. at 489-90; Hem v. Maurer,
458 F.3d 1185, 1197 (10th Cir. 2006). The Fourth Circuit
has gone further and not required a showing of reliance
at all, reasoning, in part, that it is always reasonable to
rely on governing law. Olatunji v. Ashcroft, 387 F.3d 383,
8 No. 07-2060
389-96 (4th Cir. 2004). De Horta Garcia attempts to rely on
these alternative approaches, but his arguments are far
too cursory to reach the compelling reason we require
before revisiting circuit precedent. See Santos v. United
States, 461 F.3d 886, 891 (7th Cir. 2006).
Conclusion
We therefore AFFIRM the judgement of the district court.
ROVNER, Circuit Judge, concurring. I join the court in
affirming the judgment. In key respects, De Horta Garcia’s
arguments for reversal are foreclosed by this circuit’s
precedents. I write separately to note my reservations
about those precedents in the hope that we will, at
some point, re-examine them.
In order to collaterally attack his deportation order,
De Horta Garcia must show, among other things, that the
entry of that order was fundamentally unfair. 8 U.S.C.
§ 1326(d)(3). That showing in turn demands proof that
he was deprived of due process and that he was prej-
udiced thereby. United States v. Santiago-Ochoa, 447 F.3d
1015, 1019-20 (7th Cir. 2006). De Horta Garcia posits that
he was deprived of due process when the Immigration
Judge who presided over his deportation proceeding
failed to apprise him of his right to petition the Attorney
General for relief from deportation pursuant to section
212(c) of the INA, 8 U.S.C. § 1182(c) (1995) (later repealed
No. 07-2060 9
and replaced by a different form of discretionary relief
known as cancellation of removal, see 8 U.S.C. 1229b(b)).
But relief under section 212(c) was discretionary, and
this court has held that due process does not entitle an
alien “to be informed of eligibility for—or to be considered
for—discretionary relief.” Santiago-Ochoa, 447 F.3d at 1020.
Santiago-Ochoa reflects the majority view, but I think the
minority view, well articulated by the Second Circuit’s
decision in United States v. Copeland, 376 F.3d 61, 70-73
(2d Cir. 2004), has the better of the debate among the
circuits on this point.1 As Copeland points out, the focus on
the discretionary nature of section 212(c) relief fails to
properly distinguish the right to seek relief—which under
section 212(c) was absolute—from the right to the relief
itself. Id. at 72.
The decisions holding that a failure to inform an alien
about Section 212(c) relief cannot be a fundamental
error collapse this distinction and incorrectly assume
that, because the grant of Section 212(c) relief itself is
discretionary, the denial of a Section 212(c) hearing
cannot be a fundamental procedural error.
Id. The Supreme Court itself has explicitly recognized
the distinction that the majority view has overlooked. INS
1
See Anthony Distinti, Note, Gone But Not Forgotten: How Sec-
tion 212(c) Relief Continues to Divide Courts Presiding Over
Indictments for Illegal Reentry, 74 FORDHAM L. REV. 2809, 2825-
35 (2006) (documenting the disparate circuit approaches);
Brent S. Wible, The Strange Afterlife of Section 212(c) Relief:
Collateral Attacks on Deportation Orders in Prosecutions for Illegal
Reentry After St. Cyr, 19 GEO. IMMIGR. L. J. 455, 467-80 (2005)
(same).
10 No. 07-2060
v. St. Cyr, 533 U.S. 289, 307, 121 S. Ct. 2271, 2283 (2001)
(“Traditionally, courts recognized a distinction between
eligibility for discretionary relief, on the one hand, and the
favorable exercise of discretion, on the other hand.”).
Indeed, notwithstanding the discretionary nature of
section 212(c) relief, the Court in St. Cyr treated the loss
of an alien’s eligibility to seek such relief as a concrete
detriment that counseled against applying the 1996
repeal of section 212(c) retroactively to aliens who
pleaded guilty to deportable offenses at a time when they
still would have been eligible for section 212(c) relief. Id.
at 321-25, 121 S. Ct. at 2290-93. The Court observed that
for purposes of the retroactivity analysis, “[t]here is a
clear difference . . . between facing possible deportation and
facing certain deportation.” Id. at 325, 121 S. Ct. at 2293(emphasis mine). Thus, although the right to relief itself
may be discretionary, what matters is the fact that the
right of eligible aliens to seek relief is absolute. Copeland,
376 F.3d at 72. For many aliens facing deportation, discre-
tionary relief is the only avenue of relief available. Id. at 73.
And it is worth noting that the prospect of relief under
section 212(c) by no means was illusory: as the Supreme
Court noted in St. Cyr, before section 212(c) was re-
pealed, more than one-half of all requests for discre-
tionary relief were granted. 533 U.S. at 296 & n.5, 325 &
n.54, 121 S. Ct. at 2277 & n.5, 2293 n.54; see also Vashti D.
Van Wyke, Comment, Retroactivity and Immigration Crimes
Since St. Cyr: Emerging Signs of Judicial Restraint, 154 U. Pa.
L. Rev. 741, 747 & nn.32-34 (2006). Thus, when an Immi-
gration Judge, who bears a special obligation to advise an
alien of his legal rights, has failed to inform an unrepre-
sented alien of his right to seek relief under section 212(c),
the judge has committed a fundamental procedural error
in violation of the alien’s right to due process. Copeland,
No. 07-2060 11
376 F.3d at 71-73; United States v. Ubaldo-Figueroa, 364
F.3d 1042, 1049-1050 (9th Cir. 2004); see also Brent S. Wible,
The Strange Afterlife of Section 212(c) Relief: Collateral Attacks
on Deportation Orders In Prosecutions for Illegal Reentry After
St. Cyr, 19 GEO. IMMIGR. L. J. 455, 485-92 (2005) (advocating
for adoption of Second Circuit’s approach).
This is not to say that the discretionary nature of section
212(c) relief is wholly irrelevant. In order to demonstrate
a fundamental unfairness that entitles him to collaterally
challenge his deportation, De Horta Garcia would have
to show not only that he was deprived of due process but
also that he was prejudiced by the deprivation. Santiago-
Ochoa, 447 F.3d at 1019. It is with respect to the prejudice
prong of the analysis that the discretionary character of
section 212(c) relief comes into play. To establish that
he was harmed by the Immigration Judge’s omission,
De Horta Garcia would have to establish some likeli-
hood that he would have been granted relief under sec-
tion 212(c) had he been apprised of the possibility of such
relief and availed himself of the right to seek it. Copeland,
376 F.3d at 73; see Wible, 19 GEO. IMMIGR. L. J. at 490
(describing different approaches among circuits to preju-
dice). De Horta Garcia might or might not be able to make
that showing; no record has been made as to the relative
merits of the case he could have made for discretionary
relief. Under the current law of this circuit, however,
De Horta Garcia and others like him are never given
the opportunity to show that they might have obtained
relief under section 212(c); we instead rely on the fact
that section 212(c) relief was discretionary to hold that
there was no due process right to be apprised of such
relief or to be considered for it. For the reasons set forth
in Copeland, I believe that premise is erroneous.
12 No. 07-2060
As the court points out, even if the path were clear for
De Horta Garcia to mount a collateral attack on the depor-
tation order, he would face a second obstacle in this
court’s precedents on retroactivity and reliance. When
De Horta Garcia committed his drug offense in 1995, he
had a right to seek relief from deportation pursuant
to section 212(c). But by the time he was deported in
December 1996, Congress, in section 440(d) of the
Antiterrorism and Effective Death Penalty Act (AEDPA),
had eliminated the right to seek discretionary relief for
persons who, like De Horta Garcia, had committed drug-
related offenses. See LaGuerre v. Reno, 164 F.3d 1035, 1037
(7th Cir. 1998). De Horta Garcia’s collateral challenge
to the deportation order presumes that the change in
eligibility criteria for section 212(c) relief could not be
applied to him, because although he was ordered de-
ported after the law changed, he committed and was
charged with the drug offense prior to the change. How-
ever, LaGuerre, 164 F.3d at 1041, concludes that the new
bar to discretionary relief for those convicted of drug-
related offenses applies in all pending deportation pro-
ceedings, even if the alien committed the drug offense
prior to the change in the law, so long as the change in
eligibility criteria did not disturb an alien’s reasonable
expectations. Montenegro v. Ashcroft, 355 F.3d 1035, 1037
(7th Cir. 2004) (per curiam), in turn suggests that an alien’s
reasonable expectations have been disturbed only when
he actually relied to his detriment on the availability of
section 212(c) relief. This would be true where the alien
conceded deportability, admitted criminal culpability,
or otherwise abandoned his rights in the expectation that
he still would be eligible for section 212(c) relief. Id. But
LaGuerre rejected the notion that simply because an alien
committed the crime triggering his deportation before
No. 07-2060 13
the legislative change, he might have had any reasonable
expectation that he would continue to be eligible for
discretionary relief. 164 F.3d at 1041. It struck us as
“border[ing] on the absurd” that an alien might have
factored the availability of such relief into his decision to
commit the underlying offense. Id.; see also Kelava v.
Gonzales, 434 F.3d 1120, 1124-25 (9th Cir.), cert. denied,
127 S. Ct. 43 (2006) (coll. cases in the same vein); Van Wyke,
154 U. PA. L. REV. at 776-77 & n.173 (same).
However, the Fourth Circuit’s opinion in Olatunji v.
Ashcroft, 387 F.3d 383, 389-95 (4th Cir. 2004) (2-1 decision),
makes a compelling case for the proposition that reliance
is not properly an element of the retroactivity inquiry. The
critical consideration, as Olatunji details at some length,
is whether a new statute changes the legal consequences
of acts that took place before its effective date. Id. at 390(quoting Society for the Propagation of the Gospel v. Wheeler,
22 F. Cas. 756, 767, No. 13,1356 (C.C.D.N.H. 1814) (Story,
J.)). As the Fourth Circuit acknowledges, there are
indeed references to reliance in the Supreme Court’s
retroactivity precedents. Id. at 390-91, 393-94 (discussing
Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483(1994), Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S.
939, 117 S. Ct. 1871 (1997), St. Cyr, 533 U.S. 289, 121 S. Ct.
2271, and Republic of Austria v. Altmann, 541 U.S. 677, 124
S. Ct. 2240 (2004)). That is not surprising, for reliance
always looms in the background as a reason explaining
the Court’s longstanding presumption that when Con-
gress enacts a new law, it does not intend for the law
to apply retroactively unless it makes that intent clear. Id.
at 393-94. The Court has assumed that society orders its
affairs based on existing law, and that to apply new legal
rules to acts that pre-date the change in law will, to some
14 No. 07-2060
extent, upset those expectations. But no Supreme Court
decision requires or turns on proof that the party con-
testing retroactive application of new legislation actually
relied to his detriment on prior law in setting his own
course of conduct. “Subjective reliance . . . is neither
dictated by Supreme Court precedent nor related to the
presumption of congressional intent underlying the bar
against retroactivity.” Id. at 389; see Atkinson v. Attorney
Gen. of the U.S., 479 F.3d 222, 227-31 (3d Cir. 2007); Van
Wyke, 154 U. PA. L. REV. at 787 (“[U]nfairness and the
potential for reliance on the current state of the law are
the reasons for the strong presumption against retroactiv-
ity, rather than the test for a retroactive effect; and the
presumption against retroactivity is not a right to be
earned by individuals, but a protection granted to all
members of the class [of persons potentially affected
by retroactive application of the new law]”).
If, as the Fourth Circuit has concluded, the retroactivity
analysis does not turn on reliance, then De Horta Garcia
has a straightforward claim that he should not be deemed
ineligible for section 212(c) relief because to do so would
be to retroactively attach a new disability to his prior
criminal conduct. Before the law changed in 1996, De Horta
Garcia’s commission of a drug offense (in 1995) would
have rendered him deportable but at that point he none-
theless remained eligible for discretionary relief. And as
St. Cyr recognized, he had at least a fifty-fifty shot at
obtaining such relief. 533 U.S. at 296 & n.5, 325 & n.54, 121
S. Ct. at 2277 & n.5, 2293 n.54. After the law changed to bar
those convicted of drug offenses from obtaining relief
under section 212(c), he had no chance whatsoever. As
St. Cyr also acknowledged, this is a significant difference.
Id. at 325, 121 S. Ct. at 2293. Like the panel in LaGuerre,
I too find it unlikely that when De Horta Garcia decided
No. 07-2060 15
to commit a drug offense, he entertained any thought
about his prospective eligibility for relief from deportation
in the event he was caught, convicted, and ordered de-
ported. He obviously knew that he was committing a
criminal offense, and if he did not actually know that
such an offense would trigger his deportation, he cer-
tainly may be charged with constructive knowledge of
that eventuality. Still, to retroactively hold him ineligible
for section 212(c) relief based on his prior crime would
undoubtedly increase the burden he must shoulder for
that crime by eliminating even the possibility of relief from
deportation. The Supreme Court’s decision in Landgraf
recognizes that legislation which imposes new disability
or increases the extent of one’s liability for past events
should not be applied retroactively absent clear evidence
of an congressional intent to do so. 511 U.S. at 282-85 &
n.35, 114 S. Ct. at 1506-07 & n.35. The Court in Hughes
Aircraft articulated the same rule for legislation that
eliminates a defense to liability. 520 U.S. at 947-49, 117
S. Ct. at 1876-77. Barring De Horta from discretionary relief
from deportation is the equivalent of these scenarios. See
Atkinson, 479 F.3d at 230; Ubaldo-Figueroa, 364 F.3d at 1054-
56 (Pregerson, J., concurring). And because Congress,
when it enacted section 440(d) of the AEDPA, expressed
no intent to apply the new bar to section 212(c) relief
retroactively to those who committed drug offenses prior
to its enactment, see LaGuerre, 164 F.3d at 1040-41, De Horta
Garcia should remain eligible for relief from deportation.
To the extent that reliance ought to play any role in the
retroactivity analysis, it is objective rather than subjective
reliance that should be considered, as the Third, Sixth, and
Tenth Circuits have concluded. See Ponnapula v. Ashcroft,
373 F.3d 480, 494-96 (3d Cir. 2004); Thaqi v. Jenifer, 377
16 No. 07-2060
F.3d 500, 504 n.2 (6th Cir. 2004); Hem v. Maurer, 458 F.3d
1185, 1197-99 (10th Cir. 2006); see also Olatunji, 387 F.3d
at 396-97. And if it is objectively reasonable reliance that
must be established, I believe that De Horta Garcia can
make that showing. In February 1996, De Horta Garcia
waived his speedy trial rights, which extended until
June 1996 the State of Alaska’s time to prosecute him on
the drug charge. At the time De Horta Garcia made the
decision to waive his rights, the AEDPA and its ban on
section 212(c) relief for those convicted of drug-related
offenses was not yet law. It was not until April 24, 1996,
roughly two months after the waiver, that the AEDPA had
emerged from Congress and was signed into law by
President Clinton. A person in De Horta Garcia’s posi-
tion reasonably might have believed, at the time he
waived his speedy trial rights, that when he eventually
pleaded guilty he would still be able to seek section 212(c)
relief. And there is a very real chance, that had De Horta
Garcia not waived his speedy trial rights and his prosecu-
tion not been delayed, he would have pleaded guilty
before the AEDPA became law, thus putting him in the
very category of aliens that St. Cyr held could not be
deprived retroactively of their right to seek relief under
section 212(c). This set of facts is sufficient to demon-
strate objectively reasonable reliance on the availability
of section 212(c) relief. Cf. Restrepo v. McElroy, 369 F.3d
627, 634 (2d Cir. 2004) (where individual decides to post-
pone filing his application for section 212(c) relief in
order to build a more convincing case for rehabilitation,
believing that such relief would still be available at a
later date, “the AEDPA’s undermining of this settled
expectation represents a prototypical case of retroactivity”).
Even if De Horta Garcia had opted for a timely trial
instead, it is not unreasonable to think that the continued
No. 07-2060 17
availability of section 212(c) relief would have factored into
his decision. See Ponnapula, 373 F.3d at 496 (“The reason-
able reliance question turns on the nature of the statutory
right and the availability of some choice affecting that
right, not on the choice actually made.”).
Under the law as it stands in this circuit, relief is unavail-
able to De Horta Garcia. Persuasive authority from our
sister circuits suggests, however, that in certain respects
the precedents that stand in De Horta Garcia’s path may
be incorrect and should be re-visited.
I respectfully concur in the judgment.
USCA-02-C-0072—3-13-08