Fernando Canto v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4272
F ERNANDO C ANTO ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A019-725-989
A RGUED S EPTEMBER 18, 2009—D ECIDED JANUARY 28, 2010
Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. Fernando Canto was convicted
of counterfeiting over two decades ago. Since then, by
all accounts, his life has been on the straight and narrow.
After returning from a trip abroad, he was detained and
found to be deportable because of his counterfeiting
conviction. Canto concedes deportability but argues that
2 No. 08-4272
the differing treatment of foreign and domestic con-
victions violates his equal protection rights—foreign
convictions over fifteen years old cannot be a basis for
deportation, whereas similar domestic convictions can.
Because several rational bases, including concerns about
the rights and protections of foreign justice systems
as compared to our own, may have motivated Congress
in drawing this distinction, Canto’s argument fails. Canto
also argues that the repeal of section 212(c) of the Im-
migration Code, which allowed certain deportable aliens
to petition the Attorney General for relief from deporta-
tion, was impermissibly retroactive as applied to him.
Our precedent has already addressed this question and
found that aliens who went to trial did not forgo any
rights in reliance on the continued existence of section
212(c), so it was not impermissibly retroactive. We there-
fore deny Canto’s petition for review.
I. BACKGROUND
Fernando Canto, a native of Mexico, was admitted to
the United States as a lawful permanent resident in 1971.
Since his arrival in this country, he has married, started
a family, and owned his own business that employed
twenty people. In 1983, however, he was convicted, after
a trial, of two counts of federal counterfeiting in viola-
tion of 18 U.S.C. §§ 472 and 473, and a related weapons
charge. He was sentenced to two years’ imprisonment.
Over two decades later, upon reentering the United
States from a trip to Mexico in April 2005, immigration
officials detained him and charged him with removability
No. 08-4272 3
as a result of his commission of a crime of moral turpitude.
Canto does not dispute that federal counterfeiting is a
crime of moral turpitude, nor does he dispute that a
crime of moral turpitude fits the definition of an “aggra-
vated felony,” for which he is removable under 8 U.S.C.
§ 1252(a)(2)(c). Although Canto conceded removability
before the Immigration Judge and the Board of Immigra-
tion Appeals (“BIA”), he argued that he should be
allowed to petition the Attorney General for a deporta-
tion waiver under section 212(h) and now-repealed
section 212(c) of the Immigration Code. The BIA denied
his petition and he now appeals.
II. ANALYSIS
A. Equal Protection
Canto first argues that the definition of “aggravated
felony” in the Immigration Code violates the equal pro-
tection component of the Due Process Clause. The Immi-
gration Code defines “aggravated felony” to include all
domestic aggravated felony convictions but only those
foreign felony convictions for which the petitioner had
completed his term of imprisonment during the fifteen
years prior to the commencement of removal pro-
ceedings against him. See 8 U.S.C. § 1101(a)(43). Because
Canto’s domestic conviction for counterfeiting was over
twenty years old in March 2005, had it been a foreign
conviction, he would not have been removable. He con-
tends that this differing treatment of foreign and
domestic convictions violates equal protection principles.
4 No. 08-4272
Since this classification involves neither a fundamental
right nor a suspect classification, it is accorded a strong
presumption of validity and need only be supported by
a rational basis. Heller v. Doe, 509 U.S. 312, 319-20 (1993).
Federal classifications in immigration matters are
subject to “relaxed scrutiny,” Nyquist v. Mauclet, 432 U.S. 1,
7 n.8 (1977), and should be found valid unless they are
“wholly irrational,” Mathews v. Diaz, 426 U.S. 67, 83 (1976).
Further, “review of decisions made by Congress in the
immigration context is extremely limited, and this is
particularly true where the challenged legislation sets
criteria for the admission or expulsion of aliens.” Lara-Ruiz
v. I.N.S., 241 F.3d 934, 946 (7th Cir. 2001). If any plausible
reason could provide a “rational basis for Congress’
decision to treat the classes differently, our inquiry is at
an end, and we may not test the justification by
balancing it against the constitutional interest asserted
by those challenging the statute.” Id.Congress could have had several rationales for exempt-
ing older foreign convictions from the Immigration
Code’s reasons for removability. For example, Congress
may have been concerned about the legal protections
afforded to defendants in other countries. Congress
cannot know how reliable a foreign country’s justice
system is. Our justice system, constitutional rights, and
protections against wrongful conviction differ from
those rights offered in Canada, which differ from those
rights offered in Botswana, which differ from those
rights offered in almost every country in the world. This
is especially true when the foreign law in question
is constantly evolving, and subject to change within a
No. 08-4272 5
fifteen-year period. So, it is perfectly rational that
Congress might not want to prevent an alien from
seeking a waiver because of a foreign conviction based on
different laws without analogous constitutional guaran-
tees.
Congress also might have exempted older foreign
convictions because it felt that an alien who committed
a crime in the United States forfeited his right to avail
himself of the benefits of living in this country because
his actions showed a lack of respect for United States
law, whereas an alien who committed a crime in
another country did not show a similar disrespect. See
Klementanovsky v. Gonzales, 501 F.3d 788, 794 (7th Cir.
2007). Canto retorts that this court should give just as
much credence to foreign law as it does to domestic
law because, among other things, almost every foreign
country has a lower crime rate than the United States.
This argument is not persuasive as our review is limited
to whether Congress acted with a rational basis and it
need not involve an analysis of the efficacy of foreign
law. And if older foreign convictions were treated
the same as domestic convictions for purposes of
removability, Canto would still be removable. Further,
the Supreme Court has already expressed hesitation
in giving credence to the law of foreign nations in the
manner that Canto suggests. See Small v. United States,
544 U.S. 385, 399 (2005). In any event, there very well
might be a variety of other reasons for Congress’s
decision, but the two we list are rational, and enough for
us to conclude that 8 U.S.C. §1101(a)(43) does not
violate the equal protection component of the Due
Process Clause.
6 No. 08-4272
B. Retroactivity of the Repeal of Section 212(c)
Under former section 212(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(c) (repealed 1996),
deportable aliens who had accrued seven years of
lawful permanent residence in the United States could
request discretionary relief from deportation by arguing
that the equities weighed in favor of allowing them
to remain in the United States. Even an alien deportable
because he had been convicted of an aggravated felony
(such as Canto), see 8 U.S.C. § 1227(a)(2)(A)(iii) (1994),
was eligible for such discretionary relief if he served a
term of imprisonment less than five years. 8 U.S.C.
§ 1182(c). Section 212(c) was repealed in September 1996,
when Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act (“IIRIRA”). Section
304(b) of IIRIRA repealed § 212(c) relief entirely, replacing
it with a procedure called “cancellation of removal,” see
8 U.S.C. § 1229b (1996), and providing that cancellation
of removal is not available to an alien convicted of any
aggravated felony. This provision was consistent with
section 440(d) of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), enacted shortly before IIRIRA,
which rendered aliens convicted of aggravated felonies,
regardless of the length of their sentence, ineligible
for discretionary relief from deportation under former
section 212(c). See 8 U.S.C. § 1182(h).
Had section 212(c) not been repealed, Canto would
be eligible to apply to the Attorney General for equitable
relief, and, statistically, he would have approximately
a fifty percent chance of success. See Hem v. Maurer, 458
No. 08-4272 7
F.3d 1185, 1188 (10th Cir. 2006). Canto argues that the
repeal of section 212(c) should not be allowed to apply
retroactively to him. The Supreme Court has already
addressed the retroactive application of this repeal in
the context of a deportable alien who pled guilty to a
crime of moral turpitude pursuant to a plea agreement
that specified that he would receive less than five years’
imprisonment. In I.N.S. v. St. Cyr, 533 U.S. 289, 326
(2001), the Supreme Court held that discretionary relief
under former section 212(c) “remains available for
aliens . . . whose convictions were obtained through
plea agreements and who . . . would have been eligible
for § 212(c) relief at the time of their plea under the
law then in effect.” In reaching this conclusion, the
Court applied the Landgraf formula, which requires a
court to first see if Congress unambiguously intended
the legislation to apply retroactively, and, if not, to exam-
ine whether it attaches new legal consequences to
prior events because its application “would impair
rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties
with respect to transactions already completed.” See
Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). The
St. Cyr Court concluded that Congress did not provide
a sufficiently clear command with respect to the
temporal reach of the repeal of former § 212(c) by
IIRIRA section 304(b), such that the Court could not unam-
biguously conclude that Congress intended it to
apply retroactively. St. Cyr, 533 U.S. at 319. The Court
then concluded that the retroactive application of IIRIRA
section 304(b) would have an impermissible retroactive
8 No. 08-4272
effect on aliens who had pled guilty prior to the repeal
of section 212(c) because the repeal fundamentally
changed the rights they had at the time of their convic-
tions. Id. The Court highlighted the quid pro quo of the
criminal plea agreement, and reasoned that because
aliens like St. Cyr “almost certainly relied upon that
likelihood of receiving discretionary relief under section
212(c) in deciding whether to forgo their right to a trial,
the elimination of any possibility of section 212(c) relief
by IIRIRA has an obvious and severe retroactive effect.”
Id. at 325; see also id. at 322 (“Given the frequency with
which § 212(c) relief was granted in the years leading up
to AEDPA and IIRIRA, preserving the possibility of
such relief would have been one of the principal benefits
sought by defendants deciding whether to accept a plea
offer or instead to proceed to trial.”). So, the Court held
that the repeal of section 212(c) would not apply retro-
actively to petitioners who had accepted plea agreements.
The Court, however, did not address whether relief
under former section 212(c) would be available to peti-
tioners, such as Canto, who did not accept a plea agree-
ment but instead pleaded not guilty and were convicted
after a trial. Although the Supreme Court did not
embark on this analysis, it did much of the legwork for
us. The Landgraf analysis here is the same as it is in St.
Cyr—Congress did not state with certainty that it
intended the repeal of section 212(c) to apply retro-
actively, and the repeal fundamentally changed the
rights of certain petitioners. The only question remaining
is whether those petitioners who opted to go to trial
“relied” on the continued existence of equitable relief
No. 08-4272 9
under section 212(c) in foregoing a legal right. The
circuits are split on what type of reliance is necessary. The
Fourth and Eleventh Circuits have employed an actual
reliance standard, under which the petitioner must show
that he actually subjectively relied on the prior law in the
criminal proceedings resulting in his conviction. See
Ferguson v. United States Atty. Gen., 563 F.3d 1254, 1268
(11th Cir. 2009); Chambers v. Reno, 307 F.3d 284, 290-91 (4th
Cir. 2002). The Third, Eighth, and Tenth Circuits have
employed an objective reliance standard, under which
it is only necessary to establish that relevant cir-
cumstances gave rise to interests upon which it would
have been objectively reasonable for a petitioner to rely
on the prior law in deciding to give up a legal right.
See Lovan v. Holder, 574 F.3d 990, 993-94 (8th Cir.
2009) (holding that repeal of section 212(c) had an
impermissibly retroactive effect as applied to aliens
convicted by either guilty plea or by jury); Hem v. Maurer,
458 F.3d 1185, 1192 (10th Cir. 2006) (same); Ponnapula
v. Ashcroft, 373 F.3d 480, 493 (3d Cir. 2004) (same). The
First and Ninth Circuits have not differentiated
between the two types of reliance and have categorically
held that petitioners who chose to go to trial could not
possibly have relied on the continued existence of
section 212(c) relief. Dias v. I.N.S., 311 F.3d 456, 458 (1st
Cir. 2002); Armendariz-Montoya v. Sonchik, 291 F.3d 1116,
1121 (9th Cir. 2002). The Second Circuit appears con-
flicted on the issue. In two cases, it has agreed with the
First and Ninth Circuits that a petitioner who goes to
trial cannot later argue that he relied on the continued
existence of section 212(c) in opting to reject a plea agree-
10 No. 08-4272
ment. See Swaby v. Ashcroft, 357 F.3d 156, 162 (2d Cir. 2004);
Rankine v. Reno, 319 F.3d 93, 99 (2d Cir. 2003). Then, in
Restrepo v. McElroy, 369 F.3d 627, 640 (2d Cir. 2004), it
held that a defendant who went to trial but later argued
that his “reliance” on the continued existence of section
212(c) did not involve his decision to go to trial, but rather
his decision to not immediately file a section 212(c)
request after being convicted, was entitled to an eviden-
tiary hearing to determine whether he actually relied on
section 212(c)’s continued existence. Accord Carranza-De
Salinas v. Gonzales, 477 F.3d 200, 206-09 (5th Cir. 2007).
We have agreed with the First and Ninth Circuits. See
Montenegro v. Ashcroft, 355 F.3d 1035, 1036-37 (7th Cir.
2004) (per curiam). In Montenegro, we held that relief
under former section 212(c) only remains open to:
(1) petitioners who pled guilty prior to section 212(c)’s
repeal; or (2) “aliens who conceded deportability before
AEDPA’s enactment, with the expectation that they
could seek waivers under § 212(c).” Id. at 1037. Canto fits
in neither category. Moreover, we expressly found a
petitioner could not possibly have relied on the con-
tinued existence of section 212(c) relief in deciding to go
to trial. Id. (“But this exception does not apply to aliens
like Montenegro who chose to go to trial; such aliens
did not abandon any rights or admit guilt in reliance on
continued eligibility for § 212(c) relief.”).
Here, Canto makes a slightly more nuanced argument,
relying on Hem, 458 F.3d at 1192, that he forwent his
legal right to appeal his conviction in reliance on his
continued ability to seek section 212(c) relief. The distinc-
No. 08-4272 11
tion between our analysis in Montenegro and that of the
Third, Eighth, and Tenth Circuits, which have found that
the repeal of section 212(c) to be impermissibly retro-
active as applied to petitioners who went to trial, is one
of fine line drawing. With the exception of the Fourth
Circuit, the circuits are generally in agreement that the
Supreme Court prefers a categorical approach over an
individualized analysis when deciding whether an alien
relied on the continued existence of section 212(c) in
forgoing a legal right. It cannot be disputed that the
Supreme Court took a categorical approach in St. Cyr—it
found that the category of aliens who accepted plea
agreements prior to the repeal of section 212(c) relied on
its continued existence in deciding to accept the plea.
See Hem, 458 F.3d at 1199 (“[T]he Court established an
objective, categorical scheme for determining if a
statute has impermissible retroactive effects. The Court
generalized to a category of affected aliens from the
facts of the case before it, asking whether the repeal of
§ 212(c) would have an “impermissible retroactive
effect for aliens who, like [St. Cyr], were convicted pursu-
ant to a plea agreement at a time when their plea
would not have rendered them ineligible for § 212(c)
relief.” (citation and quotation omitted)); Restrepo, 369
F.3d at 640 (“In St. Cyr II, instead, the Supreme Court
took a categorical approach. . . . We have not had briefs
or oral arguments on whether the approach taken by
the Supreme Court in St. Cyr II or a more individualized
one is appropriate in the circumstances before us.”).
In the aftermath of St. Cyr, faced with many different
reliance arguments, courts either were forced to create
12 No. 08-4272
new categories and decide whether the group of indi-
viduals in them would have relied on the continued
existence of section 212(c) relief, or abandon the
categorical approach and evaluate reliance on a case-by-
case basis. See Restrepo, 369 F.3d at 642 (Calabresi, J.,
concurring). For example, the Third Circuit concluded
that the category of aliens who turned down plea agree-
ments but went to trial relied on the continued ability
to seek section 212(c) relief such that its repeal was
impermissibly retroactive with respect to them. See
Ponnapula, 373 F.3d at 494. And the Tenth Circuit con-
cluded the same about the category of aliens who went
to trial (even in the absence of a plea agreement) but
gave up their right to appeal their conviction when a
successful appeal could have deprived them of their
ability to seek section 212(c) relief. See Hem, 458 F.3d at
1199-1200.
We, too, have followed the categorical approach,
finding that the category of aliens who went to trial
did not forgo any possible benefit in reliance on
section 212(c). See Montenegro, 355 F.3d at 1037. This
category necessarily includes those aliens that went to
trial, but chose not to appeal. The Executive Office
for Immigration Review has promulgated regulations
consistent with our interpretation. See Exec. Office for
Immigration Review, Section 212(c) Relief for Aliens
With Certain Criminal Convictions Before April 1, 1997,
69 Fed. Reg. 57826 (Sept. 28, 2004) (codified at 8 C.F.R. pts.
1003, 1212, 1240 (2006)). Even if we were to regard the
group of aliens who did not appeal as a separate
category, we would be hesitant to find that they relied
No. 08-4272 13
on section 212(c). Although, as the Supreme Court recog-
nized in St. Cyr, it is more than likely that those
aliens faced with plea agreements contemplated their
ability to seek section 212(c) relief, the same logic cannot
necessarily be extended to those aliens convicted at trial.
It is a stretch to think that the majority of aliens who
went to trial and received a sentence of less than five
years would forgo their right to appeal on the off
chance that they would be successful, get retried, be
convicted again, and then receive a sentence greater
than five years. So, it would be more likely than not
that the existence of section 212(c) did not affect
their decision about whether to appeal their convic-
tions. Therefore, we must affirm the BIA’s decision.
III. CONCLUSION
Accordingly, we D ENY Canto’s petition for review.
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