Valencia-Alvarez v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL VALENCIA-ALVAREZ, 
Petitioner, No. 05-70275
v.
 Agency No.
A42-909-915
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 7, 2006—Seattle, Washington
Filed December 6, 2006
Before: David R. Thompson, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
19189
19192 VALENCIA-ALVAREZ v. GONZALES
COUNSEL
Bernice Funk, Seattle, Washington, for the petitioner.
Peter D. Keisler, David V. Bernal, Russell J.E. Verby, Cindy
S. Ferrier, Department of Justice, Washington, D.C., for the
respondent.
VALENCIA-ALVAREZ v. GONZALES 19193
OPINION
CALLAHAN, Circuit Judge:
Petitioner, Daniel Valencia-Alvarez, a native and citizen of
Mexico, seeks relief from the Board of Immigration Appeals’
determinations that he was removable for having been con-
victed of a controlled substance offense and that he was ineli-
gible for cancellation of removal because his continuous
presence in the United States “stopped” at the time he com-
mitted the offense. On appeal, Valencia-Alvarez basically
advances two arguments. First, he contends that respondent
was barred by res judicata from asserting additional charges
after the Board of Immigration Appeals (“BIA”) held that his
underlying conviction was not an aggravated felony. Second,
Valencia-Alvarez argues that the provision of 8 U.S.C.
§ 1229b(d)(1), enacted as part of the Illegal Immigration
Reform and Immigration Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, which “stops” an alien’s
accrual of continuous presence in the United States at the time
that he commits a crime (sometimes referred to as the “com-
mitted an offense” provision), may not be applied retroac-
tively to his 1996 offense. We reject the first argument
because the BIA’s 2002 decision was not a final judgment
rendered on the merits in a separate action. We reject the sec-
ond argument because the retroactive application of the “com-
mitted an offense” provision to Valencia-Alvarez does not
impair any right he possessed when he committed the offense,
or when IIRIRA was enacted. Accordingly, the petition for
review is denied.
I
Valencia-Alvarez was admitted to the United States on July
4, 1991, and is a lawful permanent resident. On May 9, 1997,
he was convicted of a drug offense involving heroin, in viola-
tion of § 11352 of California’s Health and Safety Code.
19194 VALENCIA-ALVAREZ v. GONZALES
Valencia-Alvarez’s criminal activity took place on December
9, 1996. He received a three-year sentence.
On July 29, 1998, the Immigration and Naturalization Ser-
vice1 (the Service) charged Valencia-Alvarez with being
removable for having been convicted of an aggravated felony
as defined by 8 U.S.C. § 1101(a)(43). On December 18, 1998,
the Immigration Judge (IJ) issued a decision finding that
Valencia-Alvarez had been convicted of an aggravated felony.
Valencia-Alvarez appealed to the BIA. On August 6, 2002,
the BIA found the record insufficient to support the IJ’s con-
clusion that Valencia-Alvarez’s conviction was for an aggra-
vated felony and remanded to the IJ for further proceedings.
Three days later, the IJ issued an order noting that regard-
less of whether Valencia-Alvarez’s conviction was for an
aggravated felony, he might be removable because his convic-
tion was for a controlled substance offense. The Service was
advised that if it intended to file additional charges, it should
do so promptly. On August 13, 2002, the Service filed addi-
tional charges alleging, inter alia, that Valencia-Alvarez was
removable for having been convicted of an offense relating to
a controlled substance in violation of 8 U.S.C.
§ 1227(a)(2)(B)(i). On September 5, 2002, the IJ issued a
decision holding that under Ninth Circuit law, Valencia-
Alvarez’s conviction was neither an aggravated felony nor “a
drug-related removable offense.”
This time the Service appealed to the BIA. In its March 25,
2004 decision, the BIA rejected Valencia-Alvarez’s argument
that the Service was barred from lodging additional charges,2
1
Pursuant to the Department of Homeland Security Reorganization
Plan, as of March 1, 2003, the Service was abolished and its functions
were transferred to the Department of Homeland Security. See 6 U.S.C.
§ 542.
2
The BIA noted:
VALENCIA-ALVAREZ v. GONZALES 19195
and agreed with the IJ that the conviction was not for an
aggravated felony. The BIA, however, held that Valencia-
Alvarez was removable under § 1227(a)(2)(B)(i) because his
conviction was related to a controlled substance. The BIA
remanded the case to the IJ “to determine [Valencia-
Alvarez’s] eligibility for any form of relief from removal.”
On remand, the IJ noted that this was the third time
Valencia-Alvarez had been before him. The IJ observed that
he was not in a position to review the BIA’s determination
that Valencia-Alvarez’s conviction was a crime involving a
controlled substance. Rather, he addressed whether Valencia-
Alvarez had a “stop time” problem with meeting the seven-
year continuous residency requirement for cancellation of
removal eligibility.
The crucial criterion for Valencia-Alvarez’s eligibility for
cancellation of removal under 8 U.S.C. § 1229b(a) was
whether he had seven years of continuous residency in the
United States.3 The IJ determined that he did not have the req-
uisite continuous residency in the United States because, pur-
suant to 8 U.S.C. § 1229b(d)(1)(B), his residency had
“stopped” when he committed the offense.4 The IJ also
We find no merit to [Valencia-Alvarez’s] contention that the
[Department of Homeland Security] may not lodge additional
charges. Federal regulations provide that additional or substituted
charges of removability may be lodged by the [Department of
Homeland Security] in writing at any time during the removal
proceedings. 8 C.F.R. § 1003.30.
3
Section 1229b(a) provides that the Attorney General may cancel
removal of an alien who has been lawfully admitted for permanent resi-
dence for not less than five years, has resided in the United States continu-
ously for seven years, and has not been convicted of any aggravated
felony. Valencia-Alvarez had been lawfully admitted for more than five
years and the BIA had determined that his conviction was not for an
aggravated felony.
4
Section 1229b(d)(1) reads:
19196 VALENCIA-ALVAREZ v. GONZALES
rejected Valencia-Alvarez’s argument that “because he was
not placed in removal proceedings until 1998, the stop-time
principle should not be applied to him.” Finally, the IJ noted
that even if Valencia-Alvarez could somehow qualify for pre-
IIRIRA suspension of deportation, he would then face the bar-
rier of old INA section 241(a)(2) [8 U.S.C. § 1254 (repealed
by IIRIRA § 308(b)(7))], which required “continuous pres-
ence of not less than 10 years immediately following the com-
mission of the act.” The IJ ordered Valencia-Alvarez’s
removal to Mexico.
Valencia-Alvarez appealed to the BIA, which affirmed the
IJ’s decision without an opinion. He then filed a timely peti-
tion for review with this court.
II
Pursuant to 8 U.S.C. § 1252(a)(2)(C), we have jurisdiction
to review constitutional claims and claims of law raised in a
timely petition for review. We agree with the parties that we
have jurisdiction to consider the statutory and legal issues
raised by petitioner in this case.5 Because the BIA affirmed
the IJ’s decision without an opinion, we review the IJ’s opin-
For purposes of this section, any period of continuous residence
or continuous physical presence in the United States shall be
deemed to (end (A) except in the case of an alien who applies for
cancellation of removal under subsection (b)(2) of this section,
when the alien is served a notice to appear under section 1229(a)
of this title, or (B) when the alien has committed an offense
referred to in section 1182(a)(2) of this title that renders the alien
inadmissible to the United States under section 1182(a)(2) of this
title or removable from the United States under section
1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.
(Emphasis added).
5
On appeal, Valencia-Alvarez does not challenge the factual determina-
tion that his underlying conviction involved a controlled substance.
VALENCIA-ALVAREZ v. GONZALES 19197
ion as the final agency decision. Circu v. Gonzales, 450 F.3d
990, 993 (9th Cir. 2006) (en banc).
As an initial matter, we reject Valencia-Alvarez’s objec-
tions to the BIA’s “streamlining” of his appeal. In Falcon
Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003), we
held that “streamlining does not violate an alien’s due process
rights.” Furthermore, Valencia-Alvarez has not shown that we
cannot adequately determine the BIA’s reasons for denying
him relief, Lanza v. Ashcroft, 389 F.3d 917, 932 (9th Cir.
2004), or that this is an instance in which the BIA abused its
own regulations in streamlining the appeal. Chong Shin Chen
v. Ashcroft, 378 F.3d 1081, 1087 (9th Cir. 2004).
III
Valencia-Alvarez, relying heavily on a district court deci-
sion, Murray v. Ashcroft, 321 F. Supp. 2d 385 (D. Conn.
2004), argues that the doctrine of res judicata barred the gov-
ernment from filing additional charges against him following
the BIA’s August 6, 2002 opinion. In essence, he contends
that the August 6, 2002 opinion was a final decision and that
thereafter res judicata barred respondent from bringing any
charges against him that could have been included with the
initial charges.6
6
Res judicata or claim preclusion bars a subsequent action “not only as
to every matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which might have
been offered for that purpose.” Cromwell v. County of Sac., 94 U.S. 351,
352 (1877); see 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE
§ 131.01 (3d ed. 2006). Claim preclusion is sometimes confused with
issue preclusion, which bars a subsequent action on an issue that was actu-
ally and necessarily determined in the first action. See 18 JAMES WM. MOORE
ET AL., MOORE’S FEDERAL PRACTICE § 132.01[1] (3d ed. 2006). Valencia-
Alvarez asserts claim preclusion, not issue preclusion, as it is clear that the
BIA’s decision did not actually and necessarily determine whether the
underlying conviction concerned a controlled substance.
19198 VALENCIA-ALVAREZ v. GONZALES
[1] The criteria for the application of res judicata, which are
not fully set forth in Murray, are that there be a final judg-
ment, rendered on the merits in a separate action. See 18
JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE,
§§ 131.30[2]- [3], 131.31[1] (3d ed. 2006); see also Feder-
ated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 (1981)
(noting that the Ninth Circuit had recognized that the “ ‘tech-
nical elements’ of res judicata had been satisfied, namely, that
the decision . . . [is] a final judgment on the merits and
involved the same claims and the same parties as [the second
case]”).
[2] None of these criteria is met here. First, the BIA’s
August 6, 2002 opinion sustaining Valencia-Alvarez’s appeal
was not a final judgment. It concluded with the statement “the
record is remanded to the Immigration Court for further pro-
ceedings consistent with the foregoing opinion and for the
entry of a new decision.” Second, the opinion was not a dis-
positive decision on the merits as it states:
Given the change of law in the Ninth Circuit, and the
ambiguity of the conviction documents, a remand is
warranted for further evidence -regarding the respon-
dent’s conviction and whether he is removable as
charged.
The lack of a final disposition is reflected in the fact that the
parties continued to litigate the matter. On remand, the IJ held
that Valencia-Alvarez’s conviction was neither an aggravated
felony nor a drug-related offense. On appeal, the BIA
affirmed that the conviction was not an aggravated felony, but
held that the conviction was related to a controlled substance.
Third, Valencia-Alvarez’s first appeal to the BIA was not a
separate action. Rather, the BIA’s August 6, 2002 opinion
was the first of three BIA decisions in this single case, which
is now before us. Thus, the BIA’s 2002 opinion did not bar
the Service from bringing additional charges against
VALENCIA-ALVAREZ v. GONZALES 19199
Valencia-Alvarez because that opinion was not a final deci-
sion on the merits in a separate action.7
IV
[3] Prior to IIRIRA’s effective date, April 1, 1997, an alien
in deportation proceedings continued to accrue time toward
satisfying the seven-year residency requirement for suspen-
sion of deportation during the pendency of his or her immi-
gration proceedings. Jimenez-Angeles v. Ashcroft, 291 F.3d
594, 598 (9th Cir. 2002). IIRIRA eliminated suspension of
deportation and replaced it “with a similar (though somewhat
more burdensome) kind of relief known as ‘cancellation of
removal.’ ” Lopez-Castellanos v. Gonzales, 437 F.3d 848, 851
(9th Cir. 2006). IIRIRA, however, also contained a “stop-
clock” provision which provides that an alien ceases to accrue
time toward the residency requirement when (A) the alien is
served with a notice to appear, or (B) when the alien commits
one of a number of criminal offenses.8 8 U.S.C.
§ 1229b(d)(1). In Jimenez-Angeles, we determined that the
retroactive application of the “notice to appear” provision,
§ 1229b(d)(1)(A), was permissible. Id. at 602. Here, we con-
sider the retroactive application of the “committed an offense”
provision, § 1229b(d)(1)(B).
7
In light of this conclusion, we need not determine whether the BIA’s
2002 opinion, if final, would have barred the Service from asserting addi-
tional issues. We note, however, that we have indicated that in the admin-
istrative law context, “the principles of collateral estoppel and res judicata
are applied flexibly.” Artukovic v. INS, 693 F.2d 894, 898 (9th Cir. 1982);
see also Ramon-Sepulveda v. INS, 863 F.2d 1458, 1460 (9th Cir. 1988)
(noting that res judicata is applied flexibly in the administrative sphere,
but requiring that the agency’s position must be substantially justified).
8
Pursuant to 8 U.S.C. § 1229b(d)(1) an alien’s accrual of continuous
presence ceases when the alien commits an offense “referred to in section
1182(a)(2) of this title that renders the alien inadmissible to the United
States under section 1182(a)(2) of this title[.]” 8 U.S.C. § 1182(a)(2)(A)
(i)(II) specifies that an alien is inadmissible if he or she commits a viola-
tion “relating to a controlled substance[.]” Valencia-Alvarez does not deny
that his offense is one that is covered by §§ 1182(a)(2) and 1229b(d)(1).
19200 VALENCIA-ALVAREZ v. GONZALES
The Supreme Court has noted that “[d]espite the dangers
inherent in retroactive legislation, it is beyond dispute that,
within constitutional limits, Congress has the power to enact
laws with retrospective effect.” INS v. St. Cyr, 533 U.S. 289,
316 (2001). In Landgraf v. USI Film Prods., 511 U.S. 244,
280 (1994), the Supreme Court set forth a two-step approach
to evaluating the retroactive application of a statute. The
Court recently reiterated this approach in Fernandez-Vargas
v. Gonzales, 126 S. Ct. 2422 (2006):
This Court has worked out a sequence of analysis
when an objection is made to applying a particular
statute said to affect a vested right or to impose some
burden on the basis of an act or event preceding the
statute’s enactment. We first look to “whether Con-
gress has expressly prescribed the statute’s proper
reach,” Landgraf, supra, at 280, . . . and in the
absence of language as helpful as that we try to draw
a comparably firm conclusion about the temporal
reach specifically intended by applying “our normal
rules of construction,” Lindh v. Murphy, 521 U.S.
320, 326 . . . (1997). If that effort fails, we ask
whether applying the statute to the person objecting
would have a retroactive consequence in the disfa-
vored sense of “affecting substantive rights, liabili-
ties, or duties [on the basis of] conduct arising before
[its] enactment,” Landgraf, supra, at 278, . . . see
also Lindh, supra, at 326[.]
Id. at 2428 (alterations in original).
[4] In Garcia-Ramirez v. Gonzales, 423 F.3d 935, 939 (9th
Cir. 2005), we explained this approach as follows:
[T]he Court articulated a two-step approach for eval-
uating when the normal presumption against retroac-
tivity should not apply. Our “first task” under
Landgraf is to “determine whether Congress has
VALENCIA-ALVAREZ v. GONZALES 19201
expressly prescribed the statute’s proper reach.”
Landgraf, 511 U.S. at 280, . . . . If Congress has
clearly expressed that a law should be applied to
conduct occurring before its enactment, our inquiry
ends and we must defer to Congress’ command. Oth-
erwise, we proceed to Landgraf’s second step and
ask “whether the new statute would have retroactive
effect, i.e., whether it 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.” Id. If the new
law would have such a retroactive effect, the “tradi-
tional presumption teaches that [the new statute]
does not govern[.]” Id.
[5] A critical feature of this standard is that we must pro-
ceed to the second step of the Landgraf approach unless Con-
gress’s intent that the statute be given retroactive application
is clear. In other words, ambiguity as to a statute’s retroactive
application does not bar its retroactive application unless
doing so “would impair rights a party possessed when he
acted[.]” Landgraf, 511 U.S. at 280; see also Lopez-
Castellanos, 437 F.3d at 853 (“When, however, the statute
contains no such express command, the court must determine
whether the new statute would have retroactive effect, i.e.,
whether it 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.”);
Peralta v. Gonzales, 441 F.3d 23, 29 (1st Cir. 2006) (same).
The BIA has held that § 1229b(d) ends an alien’s continu-
ous physical presence for cancellation of removal eligibility
as of the date of his or her commission of an offense, even if
the offense was committed prior to the enactment of IIRIRA.
In re Perez, 22 I. & N. Dec. 689, 700 (BIA 1999). Respondent
argues that the BIA’s position is entitled to deference pursu-
ant to Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984). We do not find the
19202 VALENCIA-ALVAREZ v. GONZALES
BIA’s opinion dispositive. We have noted that “Chevron def-
erence is predicated on the assumption that a statute’s
ambiguity constitutes an ‘implicit delegation’ to the agency to
interpret the statute.” Castro-Cortez v. INS, 239 F.3d 1037,
1053 (9th Cir. 2001) (citing Food & Drug Admin. v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). The
Landgraf test requires determinations first of Congress’s clear
intent, and second, of the impact of retroactive effect on the
alien’s rights. Respondent has not shown that the BIA is
authorized by Congress to decide these issues.
Moreover, Valencia-Alvarez disagrees with respondent’s
interpretation of the statute. He argues that the clock-stopping
provision contained no language addressing its retroactive
applicability and that the IIRIRA Transitional Rules address-
ing the retroactive application of notice to appear provision,
§1229b(d)(1)(A), are silent as to the “committed an offense”
provision, §1229b(d)(1)(B). He further argues that the Nicara-
guan Adjustment and Central American Relief Act
(“NACARA”), Pub. L. 105-100 (1997), amending IIRIRA’s
Transitional Rules, is also silent as to the retroactivity of the
“committed an offense” provision.9
9
The provision of the IIRIRA Transitional Rules at issue states: “Para-
graphs (1) and (2) of section 240A(d) of the Immigration and Nationality
Act [8 U.S.C. § 1229b(d)(1) and (2)] (relating to continuous residence or
physical presence) shall apply to notices to appear issued before, on, or
after the date of the enactment of this Act.” Pub L. 104-208 (1996), 1996
H.R. 3610.
Similarly, the relevant provision of NACARA states: “Paragraphs (1)
and (2) of section 240(d) of the Immigration and Nationality Act shall
apply to orders to show cause . . . issued before, on, or after the date of
enactment of this Act.” NACARA § 203, Pub L. 105-100, 111 Stat. 2160
(1997).
Valencia-Alvarez argues that the provisions’ failure to address the
“committed an offense” provision, 8 U.S.C. § 1229b(d)(1)(B), meant that
Congress intended that the clause not be retroactive.
VALENCIA-ALVAREZ v. GONZALES 19203
Our determination as to Congress’s intent under the first
prong of the Landgraf test is controlled by our opinion in
Jimenez-Angeles, which concerned the retroactive application
of the notice to appear provision of § 1229b(d)(1)(A). After
reviewing the Supreme Court’s approach to IIRIRA in St.
Cyr, 533 U.S. at 317-20, we held that, despite the existence
of the Transitional Rules, “IIRIRA does not state with suffi-
cient clarity that its repeal of § 1254 suspension of deportation
relief is intended to apply to an alien in Jimenez-Angeles’
position, such that it must be applied even if its operation is
retroactive.” 291 F.3d at 601. Even assuming that the holding
in Jimenez-Angeles could be distinguished, we would not be
able to conclude, as required by St. Cyr, that the statutory lan-
guage is “so clear that it could sustain only one interpreta-
tion.” 533 U.S. at 317 (quoting Lindh, 521 U.S. at 328 n.4).10
[6] Nonetheless, Valencia-Alvarez’s request for relief fails
because he cannot meet the second prong of the Landgraf
standard: he cannot show that retroactive application of the
“committed an offense” provision to him would impair any of
his rights. Two features of Valencia-Alvarez’s position pre-
clude relief. First, unlike the plea at issue in St. Cyr, where the
alien arguably bargained for something on the basis of exist-
ing immigration law, Valencia-Alvarez cannot assert that he
relied on existing immigration law when he decided to com-
10
The Supreme Court reached a similar position in Fernandez-Vargas
concerning a different provision of IIRIRA, when it noted that “IIRIRA
sometimes expressly made changes prospective as from the effective date
and sometimes expressly provided they were applicable to earlier acts . . . .
With such a variety of treatment, it is just too hard to infer any clear inten-
tion at any level of generality from the fact of retiring the old before-or-
after language from what is now § 241(a)(5).” 126 S. Ct. at 2430. Simi-
larly, in Hernandez v. Gonzales, 437 F.3d 341, 351 (3d Cir. 2006), the
Third Circuit held that Congress had not clearly indicated that IIRIRA’s
repeal of the suspension of deportation provision there at issue should
have retroactive application. The First Circuit, however, has held that the
“committed an offense” provision, § 1229b(d)(1)(B), was clearly intended
to be retroactive. Peralta, 441 F.3d at 31.
19204 VALENCIA-ALVAREZ v. GONZALES
mit a crime. Second, following his commission of a crime,
Valencia-Alvarez has never been eligible for discretionary
relief. We find these features to be determinative and hold
that the “stop-clock” provision bars Valencia-Alvarez from
being eligible for discretionary relief.
The importance of the first feature is established by our
opinion in Jimenez-Angeles. There, the alien presented herself
to the Service shortly before IIRIRA became effective, hoping
that the Service would bring proceedings against her before
IIRIRA’s more stringent provisions for discretionary relief
took effect. 291 F.3d at 597. The Service, however, did not
serve Jimenez-Angeles with a notice to appear until well after
IIRIRA’s effective date. The BIA found her removable and
denied her request for cancellation of removal under IIRIRA’s
new provisions (requiring ten instead of seven years of con-
tinuous physical presence for an alien who was not a legal
permanent resident). Id.
On review by this court, Jimenez-Angeles argued that the
application of the new provisions to her was impermissibly
retroactive. Id. at 598. We held that retroactive application of
IIRIRA’s provisions was permissible under the second step of
the Landgraf test, explaining:
When St. Cyr entered into his plea bargain, he gave
up valuable legal rights, including his right to trial by
jury. By contrast, when Jimenez-Angeles revealed
herself to the INS, she gave up only her ability to
continue living illegally and undetected in the United
States.
Id. at 602. This case presents a similar situation because
Valencia-Alvarez cannot argue that he gave up any legal right
when he decided to commit a crime.
The critical nature of the fact that Valencia-Alvarez has
never been eligible for discretionary relief is also indicated in
VALENCIA-ALVAREZ v. GONZALES 19205
Jimenez-Angeles. After noting that Jimenez-Angeles had not
given up any valuable legal right in revealing herself to the
INS, we reasoned:
[A]lthough Jimenez-Angeles may have had an
expectation (or at least a hope) that suspension of
deportation would be available to her when she
turned herself in voluntarily less than one month
before IIRIRA’s effective date, that expectation (or
hope) was not equivalent to the settled expectation
St. Cyr gained by entering into his plea bargain
before that date.
Id. Here, Valencia-Alvarez had only the hope that, had
IIRIRA not been enacted, he might remain in the United
States long enough to possibly qualify for discretionary relief
from deportation.
The importance of the vesting of an alien’s right is also
reflected in the Third Circuit’s recent opinion in Hernandez
v. Gonzales, 437 F.3d 341 (3d Cir. 2006). Hernandez entered
the United States in 1974 as a visitor and remained beyond his
authorization. Id. at 343. In 1984, he pleaded guilty to
attempted criminal possession of a controlled substance. Id. In
1997, Hernandez married a United States citizen and then
applied for an adjustment of status. Id. In 1999, the applica-
tion was denied and removal proceedings were commenced.
Id. at 343-44. Hernandez was found to be removable and not
eligible for discretionary relief. Id. at 344. The Third Circuit
noted that prior to IIRIRA, a non-permanent resident alien
convicted of a felony might nonetheless be eligible for sus-
pension of deportation under certain conditions, but that after
the enactment of IIRIRA, a controlled substance conviction
disqualified a non-permanent resident alien from eligibility
for cancellation of removal. Id. at 347. On appeal from the
district court’s denial of habeas relief, Hernandez objected to
the retroactive application of the provision of IIRIRA, which
rendered him ineligible for cancellation of removal, arguing
19206 VALENCIA-ALVAREZ v. GONZALES
that he had relied on existing immigration law when he
pleaded guilty in 1984, and that he had also relied on existing
immigration law following the entry of his conviction and
prior to the enactment of IIRIRA. Id. at 352-53. The Third
Circuit determined that neither of Hernandez’s objections
barred retroactive application. It stated:
Hernandez cannot credibly claim a retroactive effect
from his guilty plea because immediately after he
entered his plea he was ineligible for any kind of
relief and, in fact, would remain ineligible for any
kind of relief for a decade.
Id. at 353. The Third Circuit concluded:
Because Hernandez’s application for adjustment of
status amounts to a decision to give up something to
which he had no right in the first place — his ability
to continue living illegally in the United States —
we conclude that Hernandez’s 1999 concession of
his alienage does not cause Congress’ repeal of sus-
pension of deportation as applied to him to be imper-
missibly retroactive.
Id.
[7] In our case, Valencia-Alvarez was not eligible for dis-
cretionary relief from deportation at the time he committed
the underlying offense, at the time he was convicted, or when
IIRIRA became effective. Because he was admitted to the
United States in July 1991, he did not have ten or even seven
years of continuous residency in the United States until well
after IIRIRA’s April 1, 1997, effective date. Thus, Valencia-
Alvarez had only the hope that if he managed to accrue a suf-
ficient period of continuous residency he would then become
eligible for discretionary relief from deportation or removal.
The loss of an opportunity to become eligible for discretion-
ary relief does not rise to the level of impairing a right pos-
VALENCIA-ALVAREZ v. GONZALES 19207
sessed by a party.11 Landgraf, 511 U.S. at 280. Accordingly,
the application of the “committed an offense” provision of
§ 1229b(d) to Valencia-Alvarez does not have an impermissi-
ble retroactive effect.12
Moreover, our approach is in accord with the Supreme
Court’s opinion in Fernandez-Vargas. Fernandez-Vargas, a
citizen of Mexico, first came to the United States in the
1970s, was deported for immigration violations, reentered in
1982, and remained in the United States thereafter. 126 S. Ct.
at 2427. After marrying a United States citizen, Fernandez-
Vargas filed an application to adjust his status to that of law-
ful permanent resident. Id. The application “tipped off the
11
This conclusion is buttressed by the following commentary by the
Supreme Court in Fernandez-Vargas:
We understand Fernandez-Vargas’s claim as falling within the
second of Justice Story’s categories of retroactivity (new conse-
quences of past acts), not the first category of canceling vested
rights. The forms of relief identified by Fernandez-Vargas as ren-
dered unavailable to him by § 241(a)(5) include cancellation of
removal, see 8 U.S.C. § 1229b(b), adjustment of status, see
§ 1255, and voluntary departure, see § 1229c. These putative
claims to relief are not “vested rights,” a term that describes
something more substantial than inchoate expectations and unre-
alized opportunities. In contrast to “an immediate fixed right of
present or future enjoyment,” Pearsall v. Great Northern R. Co.,
161 U.S. 646, 673, . . . (1896) (internal quotation marks omitted),
Fernandez-Vargas’s claim to such relief was contingent, and it
was up to him to take some action that would elevate it above the
level of hope. It is not that these forms of relief are discretionary,
cf. St. Cyr, 533 U.S. at 325, . . . ; it is rather that before IIRIRA’s
effective date Fernandez-Vargas never availed himself of them or
took action that enhanced their significance to him in particular,
as St. Cyr did in making his quid pro quo agreement[.]
126 S. Ct. at 2432 n.10.
12
Our determination is not inconsistent with our recent opinion in
Sinotes-Cruz v. Gonzales, No. 04-70745, ___ F.3d ___ (November 22,
2006), because Sinotes-Cruz was found to have pled guilty prior to
IIRIRA’s effective date and to have been “eligible for discretionary relief
when IIRIRA became effective.” (slip op. at 18735).
19208 VALENCIA-ALVAREZ v. GONZALES
authorities to his illegal presence here,” and resulted in pro-
ceedings that led to the reinstatement of Fernandez-Vargas’s
1981 deportation order, but as a result of the passage of
IIRIRA, without the possibility of adjusting his status to law-
ful residence. Id. The Supreme Court in affirming the applica-
tion of IIRIRA to Fernandez-Vargas explained:
St. Cyr’s agreement for a quid pro quo and his plea
were entirely past, and there was no question of
undoing them, but the “transactio[n] or consideratio-
[n]” on which § 241(a)(5) turns is different. While
the law looks back to a past act in its application to
“an alien [who] has reentered . . . illegally,” 8 U.S.C.
§ 1231(a)(5), the provision does not penalize an
alien for the reentry (criminal and civil penalties do
that); it establishes a process to remove him “under
the prior order at any time after the reentry.” Ibid.
Thus, it is the conduct of remaining in the country
after entry that is the predicate action; the statute
applies to stop an indefinitely continuing violation
that the alien himself could end at any time by vol-
untarily leaving the country.
Id. at 2432 (footnote omitted). Similarly, in the case at bar,
Valencia-Alvarez has been subject to removal or deportation
ever since his conviction.
The fact that Valencia-Alvarez was never eligible for dis-
cretionary relief from deportation or removal distinguishes his
situation from that presented in Lopez-Castellanos, where we
held that a provision of IIRIRA which expanded the definition
of aggravated felony could not be retroactively applied to a
conviction that was not an aggravated felony when entered.
437 F.3d at 853. We reasoned that ‘[t]o deprive Lopez-
Castellanos of eligibility for discretionary relief would pro-
duce an impermissible retroactive effect for aliens who, like
Lopez-Castellanos, were eligible for a discretionary waiver at
the time of the plea.” Id. Here, however, the application of 8
VALENCIA-ALVAREZ v. GONZALES 19209
U.S.C. § 1229b(d)(1)(B) to Valencia-Alvarez does not alter
the character of his conviction or deny him any existing eligi-
bility for discretionary relief. Rather, it denies him only the
possibility of becoming eligible for discretionary relief
through his continued presence in the United States.
The cases cited by Valencia-Alvarez do not undermine the
need for an existing right before the retroactive application of
§ 1229b(d)(1) is implicated. For example, in Henry v. Ash-
croft, 175 F. Supp. 2d 688 (S.D.N.Y. 2001), the alien had
entered the United States in 1984 as a legal permanent resi-
dent and was convicted of petit larceny for the first time in
1987. Id. at 691. Removal proceedings were commenced
against Henry in 2000. Id. After the BIA denied her relief,
Henry filed a habeas petition with the district court. Id. The
critical issue before the district court was the retroactive
application of the provision of § 1229b(d)(1)(B) to Henry’s
1987 conviction. The district court granted the writ, holding:
[u]nder the immigration laws in effect prior to
IIRIRA, petitioner did not become statutorily ineligi-
ble for INA § 212(c) relief when she entered a guilty
plea to petit larceny on October 5, 1987. After peti-
tioner accrued seven continuous years of lawful resi-
dence, she had a reasonable expectation that INA
§ 212(c) relief was available to her. It is an imper-
missible retroactive application of the clock stopping
provision to strip petitioner of that reasonable expec-
tation.
Id. at 696. The district court further noted that “[r]egardless
of whether she relied on her eligibility, it is the retroactive
denial of an already accrued eligibility for discretionary relief
that gives the clock stopping provision its impermissible
retroactive effect.” Id. at 696 n.4.
The same distinction is noted in the case most heavily
relied upon by Valencia-Alvarez, Generi v. Ashcroft, No.
19210 VALENCIA-ALVAREZ v. GONZALES
4:03-CV-15, 2004 WL 771138, 2004 U.S. Dist. LEXIS 6396
(W.D. Mich. Feb. 19, 2004). Generi entered the United States
in 1969, and pleaded guilty to attempted breaking and enter-
ing in 1974. Removal proceedings were commenced in 2001.
Generi challenged the application of the “committed an
offense” provision of § 1229b(d)(1)(B) to his 1974 convic-
tion. In granting relief, the district court wrote:
The issue here is not whether Petitioner considered
the possible immigration consequences of his actions
prior to committing breaking and entering in 1974.
Instead, the Court must consider Petitioner’s settled
expectations as they existed immediately prior to the
enactment to the IIRIRA and determine whether the
passage of the IIRIRA impermissibly upset those
expectations.
2004 WL 771138, at *9, 2004 U.S. Dist. LEXIS 6396 at *24.
Thus, in Generi and Henry, the aliens were eligible for discre-
tionary relief when IIRIRA became effective, thus distin-
guishing them from Valencia-Alvarez who has never been
eligible for discretionary relief.13
V
Valencia-Alvarez’s arguments in this petition for review,
although well presented by counsel, are not persuasive. The
Service’s assertion of additional charges following the BIA’s
2002 opinion was not barred by res judicata because that deci-
13
This conclusion also defeats Valencia-Alvarez’s argument that apply-
ing § 1229b(d)(1)(B) to his situation denied him due process under the
Fifth Amendment. Although aliens are entitled to due process of law,
Mathews v. Diaz, 426 U.S. 67, 77 (1976), they, like others, must in the
first instance possess a liberty or property interest. Bd. of Regents v. Roth,
408 U.S. 564, 569-71 (1972). Because we determine that Valencia-
Alvarez was never eligible for discretionary relief, he has not asserted a
liberty or property interest that could be impacted by the application of
§ 1229b(d)(1)(B) to his situation.
VALENCIA-ALVAREZ v. GONZALES 19211
sion was not a final judgment rendered on the merits in a sep-
arate action. Valencia-Alvarez’s contention that his
continuous residence for purposes of becoming eligible for
discretionary relief should not stop with his 1996 criminal
offense (as provided by 8 U.S.C. § 1229b(d)(1)(B)) fails
because he has not asserted any cognizable right that is com-
promised by the retroactive application of the statute. Accord-
ingly, the petition for review is DENIED.