Garcia-Ramirez v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITA GARCIA-RAMIREZ, 
Petitioner, No. 02-73543
v.
 Agency No.
A75-268-464
ALBERTO R. GONZALES, Attorney
General,* OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 9, 2004—Seattle, Washington
Filed August 26, 2005
Before: Dorothy W. Nelson, Raymond C. Fisher and
Ronald M. Gould, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Fisher;
Concurrence by Judge Gould
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
11645
GARCIA-RAMIREZ v. GONZALES 11649
COUNSEL
Manuel F. Rios, Rios Cantor, P.S., Seattle, Washington, for
the petitioner.
Anthony P. Nicastro, Office of Immigration Counsel, Wash-
ington, D.C., for the respondent.
OPINION
PER CURIAM:
Petitioner Margarita Garcia-Ramirez, a native and citizen
of Mexico, petitions for review of a decision of the Board of
Immigration Appeals (“BIA”), affirming without opinion an
Immigration Judge (“IJ”) decision denying her application for
cancellation of removal because of her failure to establish 10
years of continuous physical presence in the United States.
Garcia-Ramirez asserts that the BIA and IJ impermissibly
applied the continuous presence requirement of 8 U.S.C.
§ 1229b(d)(2) (the “90/180-day rule”)1 retroactively to find
1
The 90/180-day rule provides that “[a]n alien shall be considered to
have failed to maintain continuous physical presence in the United States
under subsections (b)(1) and (b)(2) of this section if the alien has departed
from the United States for any period in excess of 90 days or for any peri-
ods in the aggregate exceeding 180 days.” 8 U.S.C. § 1229b(d)(2). All
statutory citations hereinafter are to 8 U.S.C. unless otherwise indicated.
11650 GARCIA-RAMIREZ v. GONZALES
her automatically ineligible for cancellation of removal
because she departed the United States for five months
between April and September 1989. Our prior decisions gov-
erning similar claims under the transitional rules of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, § 309(c), compel us
to reject her claim.
I.
Garcia-Ramirez entered the United States illegally in May
1988 and has, but for one absence, lived in the country contin-
uously since then. In April 1989, Garcia-Ramirez left the
United States to visit family in Mexico. She returned to the
United States in September 1989. It is the effect of this five-
month absence on her accrual of time of continuous presence
in the United States that is the crux of this appeal.
On April 10, 1997, the Immigration and Naturalization Ser-
vice (“INS”)2 initiated removal proceedings against Garcia-
Ramirez as an alien present in the United States without being
admitted or paroled. The parties agree that Garcia-Ramirez’s
accrual of physical presence time ended on October 7, 1998,
when she was served with a notice to appear before an IJ.3 On
March 1, 1999, Garcia-Ramirez appeared in immigration
court, admitted to the allegations in the notice to appear and
requested that the IJ grant her cancellation of removal relief
2
On March 1, 2003, the INS was abolished as an agency within the
Department of Justice and its functions were transferred to the newly cre-
ated Department of Homeland Security.
3
Under IIRIRA, an alien’s accrual of physical presence time ends when
removal proceedings are commenced against the alien through service of
a notice to appear before an IJ. § 1229b(d)(1). The INS initially served
Garcia-Ramirez with a notice to appear on April 10, 1997. However, this
notice failed to specify the date or location of Garcia-Ramirez’s immigra-
tion hearing. Garcia-Ramirez was not served with a proper hearing notice
until October 7, 1998. Under § 1229(a), service of this second notice to
appear ended Garcia-Ramirez’s accrual of physical presence.
GARCIA-RAMIREZ v. GONZALES 11651
under § 1229b(b)(1) or, in the alternative, voluntary depar-
ture.
The IJ found Garcia-Ramirez removable as charged and
denied her request for cancellation of removal. In order to be
eligible for cancellation of removal, Garcia-Ramirez had to
demonstrate continuous physical presence in the United States
of not less than 10 years. § 1229b(b)(1)(A). Applying the
90/180-day rule of § 1229b(d)(2), the IJ found that Garcia-
Ramirez’s five-month absence in 1989 had interrupted her
otherwise continuous presence between May 1988 and the
service of her notice to appear in October 1998. Because
Garcia-Ramirez’s trip lasted more than 90 days, and less than
10 years had elapsed between her reentry in September 1989
and service of the notice to appear, the IJ determined that
Garcia-Ramirez was ineligible for cancellation of removal.
The IJ granted Garcia-Ramirez’s alternative request for vol-
untary departure.
Garcia-Ramirez appealed to the BIA, which affirmed the
IJ’s decision without an opinion. Garcia-Ramirez thereafter
filed her petition for review with our court. We have jurisdic-
tion under § 1252(a) and deny the petition for review.
II.
Garcia-Ramirez asserts that the 90/180-day rule in
§ 1229b(d)(2) cannot be applied to her because that provision
did not become law until 1997, and she left and reentered the
United States in 1989. She maintains that because she would
have remained eligible for cancellation of removal under the
law in effect at the time of her departure and reentry,
§ 1229b(d)(2) retroactively eliminates her preexisting right to
relief from removal and thereby offends due process. We first
address the government’s argument that we do not have juris-
diction to review the petition and then turn to the merits of
Garcia-Ramirez’s claim.
11652 GARCIA-RAMIREZ v. GONZALES
A. Jurisdiction
[1] The government challenges our jurisdiction to review
Garcia-Ramirez’s petition, asserting that she failed to exhaust
administrative remedies because she did not present her retro-
activity claim to the BIA. Under § 1252(d)(1) we “may
review a final order of removal only if the alien has exhausted
all administrative remedies available to the alien as of right.”
Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985); see
also id. (“As a general rule, issues not raised before an admin-
istrative tribunal cannot be raised on appeal from that tribu-
nal.”). Because the BIA does not have jurisdiction to resolve
constitutional challenges, however, due process claims —
other than those alleging only “procedural errors” within the
BIA’s power to redress — are exempt from this administra-
tive exhaustion requirement. Vargas v. INS, 831 F.2d 906,
908 (9th Cir. 1987).
[2] Garcia-Ramirez’s claim is properly viewed as an asser-
tion that application of the 90/180-day rule of § 1229b(d)(2)
to her violates due process because of impermissible retroac-
tivity. See INS v. St. Cyr, 533 U.S. 289, 316 (2001) (recogniz-
ing that Congress has the power to enact retroactive
legislation, but confirming that there are constitutional limits
on retroactivity). Retroactivity challenges to immigration laws
implicate legitimate due process considerations that need not
be exhausted in administrative proceedings because the BIA
cannot give relief on such claims. See Bagues-Valles, 779
F.2d at 484. Accordingly, we have jurisdiction to review
Garcia-Ramirez’s retroactivity claim even though it was not
raised before the BIA.
B. Retroactivity
[3] We turn to the merits of Garcia-Ramirez’s claim that
the IJ should not have applied the 90/180-day rule of
§ 1229b(d)(2) to find that her five-month absence in 1989 ter-
minated continuous physical presence. Section 1229b(d)(2)
GARCIA-RAMIREZ v. GONZALES 11653
provides a bright-line rule that an alien “shall be considered
to have failed to maintain continuous physical presence in the
United States” if the alien “has departed from the United
States for any period in excess of 90 days or for any periods
in the aggregate exceeding 180 days.” Garcia-Ramirez does
not contest that if § 1229b(d)(2) applies retroactively, her
five-month absence in 1989 would violate the 90/180-day
rule.
[4] From 1986 until IIRIRA’s effective date in April 1997,
however, the relevant statute provided that a departure from
the United States did not break continuous presence if it was
“brief, casual, and innocent and did not meaningfully interrupt
the [alien’s] continuous physical presence” in the United
States. § 1254(b)(2) (1995). “The evident statutory purpose
[of this standard was] to recognize that a person who lives for
[the requisite number of years] in the United States does not
destroy [her] eligibility by actions that do not affect [her]
commitment to living in this country.” Castrejon-Garcia v.
INS, 60 F.3d 1359, 1362 (9th Cir. 1995). Under this pre-
IIRIRA rule, “[f]or purposes of evaluating whether an
absence is brief, single absences in excess of 90 days . . . will
be evaluated on a case-by-case basis.” 8 C.F.R.
§ 240.64(b)(1); 8 C.F.R. § 1240.64(b)(1). Garcia-Ramirez
contends that the more flexible § 1254 standard must be used
to evaluate her continuous presence because applying
§ 1229b(d)(2) would be impermissibly retroactive.
1.
[5] In its landmark decision in Landgraf v. USI Film Prod-
ucts, 511 U.S. 244 (1994), the Supreme Court set forth the
principles we must consider in determining whether a statute
should be applied retroactively. Noting that “the presumption
against retroactive legislation is deeply rooted in our jurispru-
dence, and embodies a legal doctrine centuries older than our
Republic,” the Court stated in plain terms that,
11654 GARCIA-RAMIREZ v. GONZALES
[e]lementary considerations of fairness dictate that
individuals should have an opportunity to know what
the law is and to conform their conduct accordingly;
settled expectations should not be lightly disrupted.
For that reason, the “principle that the legal effect of
conduct should ordinarily be assessed under the law
that existed when the conduct took place has time-
less and universal appeal.”
Id. at 265 (quoting Kaiser Aluminum & Chemical Corp. v.
Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring));
see INS v. St. Cyr, 533 U.S. at 316.
[6] In light of these principles, the Court articulated a two-
step approach for evaluating when the normal presumption
against retroactivity should not apply. Our “first task” under
Landgraf is to “determine whether Congress has 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. Otherwise,
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 “traditional pre-
sumption teaches that [the new statute] does not govern . . . .”
Id.
2.
The first step of Landgraf requires us to “ascertain whether
Congress has directed with the requisite clarity that the law be
applied retrospectively.” St. Cyr, 533 U.S. at 316. The
Supreme Court has cautioned that “[t]he standard for finding
such unambiguous direction is a demanding one.” Id. “[C]ases
where [the Supreme] Court has found truly ‘retroactive’ effect
GARCIA-RAMIREZ v. GONZALES 11655
adequately authorized by a statute have involved statutory
language that was so clear that it could sustain only one inter-
pretation.” Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997).
Garcia-Ramirez argues that under this exacting standard, con-
gressional intent to apply the 90/180-day rule retroactively
cannot be found because § 1229b(d)(2) contains no statement
as to its intended temporal reach.
[7] Prior circuit law compels us to reject her argument. We
have held, in a series of related cases, that IIRIRA’s “transi-
tional rules,” which govern application of IIRIRA’s perma-
nent provisions to cases that were pending on IIRIRA’s
effective date, contain unambiguous congressional intent that
the Act’s stop-time4 and 90/180-day rules apply retroactively.
Although the transitional rules do not directly govern Garcia-
Ramirez’s case, it would be incongruous to hold that Con-
gress intended to apply the 90/180-day rule to petitioners gov-
erned by those rules, but not to Garcia-Ramirez.
[8] When Congress enacted IIRIRA, it included in the stat-
ute a set of “transitional rules” specifying that particular pro-
visions of the permanent statute should apply to petitioners
against whom the INS had already initiated proceedings
before the statute’s effective date. See IIRIRA § 309(c). These
transitional rules expressly provide that two of IIRIRA’s pro-
visions relating to continuous presence — the stop-time rule
and the 90/180-day rule — “shall apply to orders to show
cause . . . issued before, on, or after the date of the enactment
of this Act.” IIRIRA § 309(c)(5)(A) (emphasis added).
4
The “stop-time” rule provides that “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 § 1229(a) of this title, or (B) when the alien has
committed [certain criminal offenses], whichever is earliest.”
§ 1229b(d)(1).
11656 GARCIA-RAMIREZ v. GONZALES
We first addressed this “before, on, or after” language in
Ram v. INS, 243 F.3d 510 (9th Cir. 2001). Ram argued that
the stop-time rule — which specifies that an alien’s period of
continuous physical presence ends when deportation proceed-
ings begin — could not be applied to his petition because the
INS had initiated proceedings against him before IIRIRA took
effect and application of the rule to him would have an imper-
missible retroactive effect. We disagreed. We found unambig-
uous the statute’s instruction that the stop-time rule be applied
to petitioners who fall under the transitional rules whose
orders to show cause were “issued before, on, or after the date
of enactment [of IIRIRA],” and also relied on IIRIRA’s legis-
lative history, which suggested that Congress intended the
transitional rules to apply the stop-time rule retroactively. See
Ram, 243 F.3d at 515-18 (quoting IIRIRA § 309(c)(5)(A)).
We later followed Ram in Mendiola-Sanchez v. Ashcroft,
381 F.3d 937 (9th Cir. 2004), to hold that § 309(c)(5)(A)
requires retroactive application of the 90/180-day rule as well.
The Mendiolas, whose case was governed by the transitional
rules, argued that a five-month trip they took in 1993 should
not bar their eligibility for suspension of deportation because
the pre-IIRIRA “brief, casual, and innocent” standard rather
than IIRIRA’s 90/180-day rule should apply to their petition.
We rejected their claim, reasoning that “it is very unlikely that
Congress intended to apply only the stop-time rule retroac-
tively, and not the 90/180-day rule. IIRIRA § 309(c)(5)(a)
states that both provisions apply to aliens whose deportation
proceedings were pending on the date of IIRIRA’s enactment
and there is no indication that the two provisions should be
applied differently.” Id. at 941.
[9] These cases compel us to reach the same conclusion
here. Garcia-Ramirez correctly argues that § 1229b(d)(2) does
not reflect an express congressional intent that it should be
applied retroactively, and we agree with her that use of the
past present tense — “an alien shall be considered to have
failed to maintain continuous presence” if the alien “has
GARCIA-RAMIREZ v. GONZALES 11657
departed” from the United States for more than 90 days — is
an insufficient ground from which to infer such intent under
the Landgraf standard. Mendiola-Sanchez, however, holds
that the broader IIRIRA statute, specifically § 309(c)(5)(a) of
the transitional rules, does contain unambiguous congressio-
nal intent that the 90/180-day rule be applied retroactively.
Although the INS did not initiate proceedings against Garcia-
Ramirez until after IIRIRA’s effective date, and thus the tran-
sitional rules do not govern her petition, § 309(c)(5)(a) is part
of the IIRIRA statute and stands as persuasive evidence, as
construed by Mendiola-Sanchez, that Congress intended to
apply the 90/180-day rule to non-citizens who, like the Men-
diolas and Garcia-Ramirez, left the country for periods of
more than 90 days before IIRIRA’s passage.
Declining to apply the 90/180-day rule here would there-
fore produce an incongruous result. Garcia-Ramirez’s circum-
stances closely resemble those of the Mendiolas, whose
claims were arguably even more compelling than those of
Garcia-Ramirez. She entered the country illegally in May
1988 and has lived in the country continuously since that date
with the exception of her five-month trip in 1989 to visit fam-
ily in Mexico. The Mendiolas, however, had continuously
resided in the United States for even longer, since 1983. After
accumulating 10 years of continuous presence in the United
States, Mendiola took a six-month trip to Mexico in 1993 to
care for his parents and was joined by his son for five months
of that trip. Although Mendiola’s wife and daughter, who had
not traveled to Mexico, received relief from deportation, we
upheld the BIA’s application of the 90/180-day rule to Mr.
Mendiola and his son.
The legal distinction between these two cases derives solely
from the fortuity that the INS initiated proceedings against the
Mendiolas one day before IIRIRA’s effective date but did not
place Garcia-Ramirez in removal proceedings until after the
statute became effective. The transitional rules thus controlled
the Mendiolas’ case, whereas the permanent provisions apply
11658 GARCIA-RAMIREZ v. GONZALES
to Garcia-Ramirez. Neither Garcia-Ramirez nor the Men-
diolas could have known when they took their trips to Mexico
that the “brief, casual, and innocent” standard would be abro-
gated and replaced with IIRIRA’s 90-day bright line rule, and
the Mendiolas, who received their orders to show cause
before IIRIRA’s effective date, seemingly have the more
compelling argument that IIRIRA’s new provisions should
not apply to them.
[10] Because we have already held that IIRIRA’s transi-
tional rules contain express congressional intent to apply the
90/180-day rule to petitioners who left the country for more
than 90 days before IIRIRA’s passage, we conclude that we
are required to apply the rule to all such petitioners, whether
their cases are governed by the transitional rules or IIRIRA’s
permanent provisions.
Petition DENIED.
FISHER, Circuit Judge, with whom D. W. NELSON, Senior
Circuit Judge, joins, concurring:
Although we hold that Mendiola-Sanchez v. Ashcroft, 381
F.3d 937 (9th Cir. 2004), compels us to affirm application of
the 90/180-day rule to Garcia-Ramirez, we do so reluctantly
because we remain unconvinced that Ram v. INS, 243 F.3d
510 (9th Cir. 2001), required the result reached in Mendiola-
Sanchez, and because we believe that Garcia-Ramirez would
have prevailed under the second step of the retroactivity test
articulated in Landgraf v. USI Film Products, 511 U.S. 244
(1994).
The Mendiola-Sanchez panel articulated its own regret in
holding that the 90/180-day rule must apply retroactively to
the Mendiolas:
GARCIA-RAMIREZ v. GONZALES 11659
Although we deny the petition for review because
that is the proper conclusion under the relevant stat-
utes, we pause in recognition of the injustice of this
result. . . . The only reason the Mendiolas are ineligi-
ble for suspension of deportation is that they stayed
too long in Mexico to help Mr. Mendiola-Sanchez’s
elderly parents recover from unexpected injuries.
Mendiola-Sanchez, 381 F.3d at 941. Nonetheless, the panel
concluded that the “core of the reasoning in Ram applie[d] to
the 90/180 day rule” and that it was “very unlikely that Con-
gress intended to apply only the stop-time rule retroactively,
and not the 90/180 day rule.” Id. at 940-41. Accordingly, the
panel held that Ram controlled and denied the Mendiolas’
petition for relief.
We do not think that Ram required the result in Mendiola-
Sanchez. Section 309(c)(5)(A) of IIRIRA (included in the
statute’s “transitional rules”) instructs that the stop-time and
90/180-day rules should be applied to petitioners whose cases
were pending on IIRIRA’s effective date whether their orders
to show cause were issued “on, before, or after” IIRIRA’s
enactment. With regard to the stop-time rule, this provision
constitutes unambiguous congressional intent that the statute
be applied retroactively: regardless of when an alien’s order
to show cause was issued, her accrued continuous presence
time must, under § 309(c)(5)(A), stop on that date. Applica-
tion of § 309(c)(5)(A) to the 90/180-day rule, however, is
slightly more complicated because it changes the rules as to
actions the petitioner has already taken.
Under Ram, § 309(c)(5)(A) requires that the 90/180-day
rule apply to petitioners whose cases were pending when
IIRIRA became effective, but Ram has no effect on a subse-
quent question — whether even if the 90/180-day rule applies
to a petitioner’s case, it applies to trips that she took before
Congress passed IIRIRA. The Mendiola-Sanchez panel did
not consider this second question, not present in Ram, before
11660 GARCIA-RAMIREZ v. GONZALES
reaching its conclusion that Ram controlled. On a blank slate,
we would construe § 309(c)(5)(A) as expressing congressio-
nal intent to apply the 90/180-day rule to all petitioners whose
cases were pending when IIRIRA became effective on April
1, 1997, but only to their absences from the country that post-
date IIRIRA’s enactment on September 30, 1996. Admittedly,
the rule would then affect only a very small class of petition-
ers. But applying the Landgraf standard, we would not read
the statute to attach penalties to trips taken before Congress
passed IIRIRA, absent express, unambiguous congressional
intent to do so.
Further, if Mendiola-Sanchez erred in finding congressional
intent in § 309(c)(5)(A) — which we respectfully think it did
but which we accept as binding on us — we believe that
Garcia-Ramirez would be entitled to a remand for reconsider-
ation of her petition under the old standard. Where Congress
has not clearly specified otherwise, the traditional presump-
tion against retroactivity applies if the statute would have
retroactive effect.
A statute has retroactive effect when it takes away or
impairs vested rights acquired under existing laws,
or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions
or considerations already past.
INS v. St. Cyr, 533 U.S. 289, 321 (2001) (quoting Landgraf,
511 U.S. at 269) (internal quotation marks omitted) (emphasis
added). Retroactivity analysis involves a “commonsense,
functional judgment about whether the new provision
attaches new legal consequences to events completed before
its enactment,” and is “informed and guided by familiar con-
siderations of fair notice, reasonable reliance, and settled
expectations.” Id. (quoting Martin v. Hadix, 527 U.S. 343,
357-58 (1999)) (internal quotation marks omitted) (emphasis
added).
GARCIA-RAMIREZ v. GONZALES 11661
On its face, the application of § 1229b(d)(2) to Garcia-
Ramirez long after the fact of her 1989 five-month trip to
Mexico clearly “attach[es] a new disability, in respect to [a
transaction] already past.” Id. At the time she took her trip,
Garcia-Ramirez risked that her absence would later be judged
not to have been “brief, casual, and innocent,” thereby effec-
tively restarting the clock when she returned in 1990. She did
not have an assurance, therefore, that her departure and return
would have no adverse effect; but she likewise did not have
reason to believe that her five-month absence would automat-
ically negate her accrued time and restart the clock — which
is the effect of applying the new bright-line rule of the 1997
statute. “There is a clear difference, for the purposes of retro-
activity analysis, between facing possible deportation and fac-
ing certain deportation.” Id. at 325. Because applying
§ 1229b(d)(2) to Garcia-Ramirez “attaches new legal conse-
quences to events completed before its enactment,” doing so
has an impermissibly retroactive effect. Id. at 321 (quoting
Martin, 527 U.S. at 357-58 (quoting Landgraf, 511 U.S. at
270)).
Elementary notions of fairness and fair notice, reasonable
reliance, settled expectations and commonsense also counsel
in favor of applying the traditional presumption of nonretroac-
tivity. When Garcia-Ramirez took her trip, she had no reason
to believe that her absence would automatically disqualify her
from eligibility for relief; she could reasonably rely on the law
at the time as governing the effects of her departure. The
change in law should not, absent clearly expressed Congres-
sional intent, bar her eligibility retroactively. When a statute
converts a five-month trip from a risk of losing eligibility for
relief from removal to an automatic certainty, what greater
need is there for notice and a chance to conform one’s behav-
ior to the new, bright-line rule? This is a paradigm instance
of the law imposing a new legal disability based on an event
completed before the law changed. Nonetheless, because
Judge Gould does not agree with us, we will address the spe-
cific arguments for and against retroactivity.
11662 GARCIA-RAMIREZ v. GONZALES
Section 1229b(d)(2) should be impermissibly retroactive as
applied to Garcia-Ramirez because the 90/180-day rule auto-
matically makes her ineligible for cancellation of removal,
whereas she would not be automatically ineligible for such
relief under the pre-IIRIRA “brief, casual, and innocent” stan-
dard. She did not seek an assurance that her absence was in
fact “brief, casual, and innocent”; instead, she sought eligibil-
ity to argue this point to the BIA on remand. Analogously, in
St. Cyr, the Supreme Court held that IIRIRA’s elimination of
discretionary relief for aliens convicted of aggravated felonies
could not be applied retroactively to an alien who had pled
guilty before IIRIRA’s effective date. See id. at 326.
Although Garcia-Ramirez cannot point to the kind of quid
pro quo that the Supreme Court presumed to have occurred in
St. Cyr — a guilty plea — the Court has by no means set forth
quid pro quo as the only route for demonstrating that a statute
is impermissibly retroactive. Rather, “[n]o single consider-
ation is essential. Retroactivity analysis under Landgraf
requires independent analysis of whatever factors may apply,
any of which can ground a finding of impermissible retroac-
tive application.” Chang v. United States, 327 F.3d 911, 920
n.8 (9th Cir. 2003); see also Hughes Aircraft Co. v. United
States, 520 U.S. 939, 947 (1997) (emphasizing that “the Court
has used various formulations to describe the functional con-
ceptio[n] of legislative retroactivity”) (internal quotation
marks omitted); Restrepo v. McElroy, 369 F.3d 627, 637 (2d
Cir. 2004) (“[T]he Court never suggested that all parties who
claim that a statute has a retroactive effect must show the dis-
ruption of a quid pro quo exchange. And it would be out of
keeping with the reasoning of St. Cyr [ ] to read such a quid
pro quo requirement into that opinion. For in St. Cyr [ ], the
Court observed that ‘categorical arguments are not particu-
larly helpful in undertaking Landgraf’s commonsense, func-
tional retroactivity analysis.’ ”) (quoting St. Cyr, 533 U.S. at
324).
GARCIA-RAMIREZ v. GONZALES 11663
Nor does our circuit law impose an additional requirement
that in order to establish reliance on the old law, a petitioner
must in all circumstances demonstrate actual, subjective reli-
ance or a quid pro quo exchange to establish impermissible
retroactivity. “Reasonable reliance may itself be based upon
a quid pro quo, as in St. Cyr . . . or merely on assurances as
to the current status of the law.” Chang, 327 F.3d at 920 n.8
(citation omitted) (holding that new INS rules could not be
applied to investors whose petitions were approved before the
rules were promulgated, because they would impose a new
exhaustion requirement and take away the right of appeal
without fair notice); see also Kankamalage v. INS, 335 F.3d
858, 863 (9th Cir. 2003) (applying St. Cyr and concluding that
a regulation impermissibly attached a new disability to an
alien’s guilty plea, without examining whether the alien spe-
cifically bargained for eligibility at the time of the plea);
United States v. Velasco-Medina, 305 F.3d 839, 849-50 (9th
Cir. 2002) (holding that Velasco-Medina could not have rea-
sonably relied on the possibility of relief under the legal land-
scape at the time he entered his guilty plea).1
Thus we disagree with Judge Gould that applying St. Cyr
to Garcia-Ramirez’s situation would constitute an extension
1
Judge Gould challenges our reliance on Kankamalage and Velasco-
Medina, stating that “these cases do not assist in de-emphasizing the
importance the Supreme Court in St. Cyr placed on reasonable reliance,
settled expectations and vested interests.” Judge Gould concurrence at
11675. We agree that these cases require reasonable reliance, but objec-
tively reasonable reliance. As both cases involve guilty pleas, they follow
St. Cyr in holding that a guilty plea is evidence of reasonable reliance and
do not speak to the question of what other circumstances might evidence
reliance. In discussing the defendants’ reliance and expectations, both
cases turn on the state of the law at the time that the plea was entered, not
on the defendant’s subjective expectations at that time. Thus, we held that,
unlike St. Cyr and Kankamalage, Velasco-Medina did not have settled
expectations of § 212(c) relief because AEDPA put him on notice that
such relief might not be available and his expectations “must have been
shaped by the then-current legal landscape.” Velasco-Medina, 305 F.3d at
849.
11664 GARCIA-RAMIREZ v. GONZALES
either of St. Cyr or of retroactivity analysis more generally.
Indeed, both the Third and the Fourth Circuits have recently
rejected the contention that retroactivity analysis requires
actual reliance or the type of quid pro quo exchange present
in St. Cyr. See Ponnapula v. Ashcroft, 373 F.3d 480, 491-93
& n.9 (3d Cir. 2004) (holding that Supreme Court law
requires “reasonable” not “actual” reliance, observing that
“St. Cyr was an easy case on the retroactivity issue,” and not-
ing that the presence of a quid pro quo is evidence of a reli-
ance interest); Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.
2004) (holding that consideration of reliance is irrelevant to
statutory retroactivity analysis; alternatively, that only objec-
tively reasonable reliance, not subjective reliance, is
required).
There are several hallmarks of retroactivity present here
that demonstrate that application of the 90/180-day rule to
Garcia-Ramirez upsets settled expectations without notice.
First, “[t]here is a clear difference, for the purposes of retroac-
tivity analysis, between facing possible deportation and facing
certain deportation.” St. Cyr, 533 U.S. at 325. By pleading
guilty to the charged offense, St. Cyr risked eventual deporta-
tion and denial of § 212(c) relief. The Supreme Court
explained that turning the possibility of deportation into a cer-
tainty would have “a severe retroactive” effect. Id. Similarly,
by leaving the country for five months, Garcia-Ramirez risked
eventual deportation based on a later determination that her
absence was not “brief, casual, and innocent.” Applying
IIRIRA now to her past conduct, however, makes her poten-
tial ineligibility for suspension of deportation absolute. Of
course, Garcia-Ramirez had little accrued time when she took
her trip to Mexico in 1989. But however brief, that accrued
time has turned out to be vital to her ability to satisfy the con-
tinuous physical presence requirements.
Second, there is a significant difference between a statute
that extends the time required to qualify for possible relief
from removal — extending the duration from seven to 10
GARCIA-RAMIREZ v. GONZALES 11665
years — and one that reaches back to prior conduct and auto-
matically subtracts it from one’s accrued continuous presence.
Thus, applying the presumption against retroactivity here
would in no way conflict with our holding in Jimenez-Angeles
v. Ashcroft, 291 F.3d 594 (9th Cir. 2002), that IIRIRA’s new
10-year rule can be applied to petitioners who were present in
the United States before its enactment. Jimenez-Angeles did
not forfeit any part of her accumulated time — or suffer any
consequences she could have avoided by changing her prior
actions once her continuous presence clock began running had
she known the requisite time would be extended to 10 years.
A person in Garcia-Ramirez’s situation, on the other hand,
could, with notice, simply have remained within the bounds
of the 90/180-day parameters of the new law.
Third, considerations of reasonable reliance and fair notice
counsel against the application of § 1229b(d)(2) to Garcia-
Ramirez. Garcia-Ramirez’s “settled expectations must have
been shaped by the then-current legal landscape.” Velasco-
Medina, 305 F.3d at 849; see also Kankamalage, 335 F.3d at
863. When the “relevant past event” occurred, namely Garcia-
Ramirez’s decision to leave the United States in 1989 for
more than 90 days, she could reasonably have relied on exist-
ing law to conclude that her departure would not necessarily
restart the clock on a bid to establish continuous physical
presence in the United States. Landgraf, 511 U.S. at 270. By
contrast, Jimenez-Angeles had no basis in law for believing
that her relevant past event — turning herself in before
IIRIRA’s effective date — would cause the INS to place her
into deportation proceedings before IIRIRA’s effective date
or under pre-IIRIRA law. See Jimenez-Angeles, 291 F.3d at
602; see also Lopez-Urenda v. Ashcroft, 345 F.3d 788, 793
(9th Cir. 2003); Vasquez-Zavala v. Ashcroft, 324 F.3d 1105,
1107 08 (9th Cir. 2003).2 Far from relying on the mere hope
2
We have subsequently relied on this aspect of Jimenez-Angeles in con-
cluding that two aliens who filed asylum applications on March 10, 1997
11666 GARCIA-RAMIREZ v. GONZALES
of beneficence by the INS, in 1989 aliens such as Garcia-
Ramirez had statutory assurance about how their temporary
departures would be evaluated. See 8 U.S.C. § 1254(b)(2)
(1995); Chang, 327 F.3d at 920 n.8.
As in St. Cyr, Chang and Kankamalage, a finding of imper-
missible retroactivity here would not depend on Garcia-
Ramirez showing that she actually, subjectively relied on 8
U.S.C. § 1254(b)(2) when she departed the United States. See
St. Cyr, 533 U.S. at 322-25 (presuming a quid pro quo with-
out proof of actual reliance); see also Olatunji, 387 F.3d at
393 (“St. Cyr did not purport to add a subjective reliance
requirement; rather it applied Landgraf to a set of facts that
indicated ‘an obvious and severe retroactive effect.’ ” (citing
St. Cyr, 533 U.S. at 325) (emphasis added)); Ponnapula, 373
F.3d at 491 (“The Supreme Court has never required actual
reliance or evidence thereof in the Landgraf line of cases, and
has in fact assiduously eschewed an actual reliance require-
ment.”). Rather, given the statutory structure in 1989 — in
which temporary absences were assessed under a judgmental,
discretionary standard — we would not presume that Garcia-
Ramirez’s decision to remain in Mexico for more than 90
days would have been the same had § 1229b(d)(2)’s
90/180-day absolute limitation been on the books instead.
— shortly before IIRIRA went into effect on April 1, 1997 — had no set-
tled expectations that they would be subject to deportation proceedings
under pre-IIRIRA law rather than removal proceedings under IIRIRA. See
Vasquez-Zalava, 324 F.3d at 1108. IIRIRA was not impermissibly retroac-
tive as applied to these asylum applicants because, as was the case when
Jimenez-Angeles turned herself in, “any expectation that an INS action
would thereafter commence could not support a sufficient expectation as
to when it would commence.” Id. (emphasis in original); see also Lopez-
Urenda, 345 F.3d at 794 (extending Vasquez-Zalava’s holding to aliens
who filed asylum applications before IIRIRA’s passage on September 30,
1996, because even assuming their asylum applications would be denied,
the applicants “did not have settled expectations as to when proceedings
against them would commence”) (emphasis in original).
GARCIA-RAMIREZ v. GONZALES 11667
We would not dispense with the requirement of reasonable
reliance. We simply find it to be objectively reasonable that
an alien like Garcia-Ramirez, contemplating a trip outside the
United States in 1989, could reasonably rely on the then-
applicable legal standard not later being converted to one that
automatically restarted the clock on her continuous presence
because she exceeded the 90-day limit — a limit she could
have stayed within had that been the rule at the time. There-
fore, applying § 1229b(d)(2) to her 1989 departure imper-
missibly attaches new legal consequences that did not exist
before IIRIRA. See Landgraf, 511 U.S. at 270.
We agree with Judge Gould that Congress retains its super-
ordinate role in formulating and reformulating our immigra-
tion laws. See Judge Gould concurrence at 11679. But it is
settled law that in doing so, Congress must express its intent
clearly. See, e.g., St. Cyr, 533 U.S. at 316.3 Congress has not
done so with respect to applying the new 90/180-day rule to
trips taken before IIRIRA’s passage, and Garcia-Ramirez has
demonstrated objectively reasonable reliance on the prior law.
But for Mendiola-Sanchez, we would apply the “deeply root-
ed” presumption against retroactivity in favor of Garcia-
Ramirez (and the Mendiolas). See Landgraf, 511 U.S. at 265.
3
Judge Gould points to the REAL ID Act as an example of Congress
implementing immigration law reform. See Judge Gould concurrence at
11680 n.7. The REAL ID Act illustrates our very point, because it con-
tains express provisions instructing that certain changes in the law should
be applied retrospectively and others only prospectively. See REAL ID
Act, Pub. L. 109-13, 119 Stat. 231. Where such express instruction exists,
we can be confident that Congress has weighed the costs and benefits of
retroactive application of the new laws and has considered the potential
hardships imposed on individuals who took actions under the old law.
Absent such evidence that Congress has weighed and considered the
effects of its new legislation on prior actions, we would not upset the set-
tled expectations of petitioners like Garcia-Ramirez who took trips under
the old legal landscape.
11668 GARCIA-RAMIREZ v. GONZALES
GOULD, Circuit Judge, concurring:
Judge Fisher, in his separate concurrence, states that he “re-
luctantly” agrees that our precedent governing similar claims
under the transitional rules of IIRIRA requires that Garcia-
Ramirez’s petition be denied. See Mendiola-Sanchez v. Ash-
croft, 381 F.3d 937 (9th Cir. 2004) and Ram v. INS, 243 F.3d
510 (9th Cir. 2001). My able colleague writes separately to
explain his further view that, were he reviewing Garcia-
Ramirez’s petition “on a blank slate,” he would proceed to the
second step of the Landgraf retroactivity analysis1 and con-
clude that the petition should be granted. I write separately, in
turn, with my responsive views, as I conclude differently that,
if we were called upon to apply Landgraf’s second step, the
application of the 90/180-day rule to Garcia-Ramirez would
not result in an impermissibly retroactive effect under the
Supreme Court’s precedent.
I
A new statute does not produce an impermissibly retroac-
tive effect “merely because it is applied in a case arising from
conduct antedating the statute’s enactment, or upsets expecta-
tions based in prior law.” Landgraf, 511 U.S. at 269 (internal
citation omitted). Rather, the question of whether constitu-
tionally impermissible consequences result from a statute’s
1
In St. Cyr, the Supreme Court affirmed and reiterated the two-part
framework for addressing potentially retroactive statutes that was estab-
lished in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).
Applying the Landgraf test, a court must first ask “whether Congress has
directed with the requisite clarity that the law be applied retrospectively.”
St. Cyr, 533 U.S. at 316; see also Landgraf, 511 U.S. at 280 (holding that
Congress must “expressly prescribe[ ] the statute’s proper reach”). If the
statutory language does not meet this standard, our analysis must proceed
to Landgraf’s second prong, asking whether the application of the statute
“produces an impermissible retroactive effect.” St. Cyr, 533 U.S. at 320.
In our per curiam opinion, we conclude our Landgraf analysis at step one,
holding that our prior circuit law compels the conclusion that Congress
intended IIRIRA’s 90/180-day rule to apply retroactively.
GARCIA-RAMIREZ v. GONZALES 11669
retrospective application is a “commonsense, functional judg-
ment . . . guided by ‘familiar considerations of fair notice, rea-
sonable reliance, and settled expectations.’ ” Martin v. Hadix,
527 U.S. 343, 357-58 (1999) (quoting Landgraf, 511 U.S. at
270). “A statute has retroactive effect when it takes away or
impairs vested rights acquired under existing laws, or creates
a new obligation, imposes a new duty, or attaches a new dis-
ability, in respect to transactions or considerations already
past.” St. Cyr, 533 U.S. at 321 (internal quotation marks omit-
ted). However, the “application of new statutes passed after
the events in suit is unquestionably proper in many situa-
tions.” Landgraf, 511 U.S. at 273. St. Cyr is the Supreme
Court’s most recent pronouncement on Landgraf’s retroactiv-
ity analysis in the immigration context, and we must look to
it to guide our own review. See Agostini v. Felton, 521 U.S.
203, 237 (1997) (instructing lower courts to apply the Court’s
most direct precedent—clearly St. Cyr in this case—when
looking for guidance and controlling authority). I begin by
reviewing St. Cyr in some detail.
A
Enrico St. Cyr was a lawful permanent resident alien who
pled guilty to an aggravated felony charge. St. Cyr, 533 U.S.
at 293. At the time of his guilty plea, St. Cyr’s conviction ren-
dered him deportable; however, he was then still eligible for
a discretionary waiver of deportation that was available for
permanent resident aliens pursuant to INA § 212(c). Id.
IIRIRA repealed the Attorney General’s discretion to waive
deportation under § 212(c), replacing it in relevant part with
8 U.S.C. § 1229b(a)(3), which excluded anyone convicted of
an aggravated felony from the relief of cancellation of
removal. Id. at 297. Because his removal proceedings were
not commenced until after IIRIRA’s effective date, St. Cyr
could no longer avail himself on the possibility of discretion-
ary relief. The Court granted certiorari on St. Cyr’s habeas
appeal, to decide, inter alia, “whether depriving removable
aliens of consideration for § 212(c) relief produces an imper-
11670 GARCIA-RAMIREZ v. GONZALES
missible retroactive effect for aliens who, like [St. Cyr], were
convicted pursuant to a plea agreement at a time when their
plea would not have rendered them ineligible for § 212(c)
relief.” Id. at 320.
Proceeding under the second prong of the Landgraf analy-
sis, the Court held that applying the repeal of § 212(c) to
aliens “who entered into plea agreements with the expectation
that they would be eligible for [ ] relief clearly ‘attaches a new
disability, in respect to transactions or considerations already
past.’ ” Id. at 321. (quoting Landgraf, 511 U.S. at 269)
(emphasis added). Central to the Court’s conclusion was the
alien’s “reasonable reliance” on the possibility of discretion-
ary relief in deciding to waive his right to a trial and enter into
the plea agreement:
Plea agreements involve a quid pro quo between a
criminal defendant and the government. In exchange
for some perceived benefit, defendants waive several
of their constitutional rights (including the right to a
trial) and grant the government numerous tangible
benefits, such as promptly imposed punishment
without the expenditure of prosecutorial resources.
There can be little doubt that, as a general matter,
alien defendants considering whether to enter into a
plea agreement are acutely aware of the immigration
consequences of their convictions. Given the fre-
quency 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.
St. Cyr, 533 U.S. at 321-23 (internal quotation marks, foot-
notes, and citations omitted). The Court concluded that
because the respondent “almost certainly relied upon” the
likelihood of receiving § 212(c) relief “in deciding whether to
GARCIA-RAMIREZ v. GONZALES 11671
forgo [his] right to a trial, the elimination of [that possibility]
by IIRIRA ha[d] an obvious and severe retroactive effect.” Id.
at 325.
B
Judge Fisher in his separate concurrence acknowledges that
Garcia-Ramirez lacks the quid pro quo that was central to the
Court’s analysis in St. Cyr. Judge Fisher concurrence at
11662. He does not view this omission as fatal to his analysis,
however, contending that reasonable reliance is not the sine
qua non for a holding of impermissible retroactive effect, and
no doubt taking solace that Landgraf did not “define the outer
limit of impermissible retroactivity.” Hughes Aircraft Co. v.
United States, 520 U.S. 939, 947 (1997)).
I agree that the Supreme Court has not heretofore made any
one factor of our retroactivity analysis dispositive. However,
I would not stray from the Court’s instructive example in the
immigration context. See Agostini, 521 U.S. at 237. St. Cyr
exchanged his “vested” legal right to trial relying on the
assumption that it would not make him automatically deport-
able. This reliance was reasonable given the significant per-
centage of resident aliens granted § 212(c) relief at the time.
See St. Cyr, 533 U.S. at 322-23. By entering into a plea agree-
ment, St. Cyr in turn “grant[ed] the government numerous
‘tangible benefits, such as promptly imposed punishment
without the expenditure of prosecutorial resources.’ ” Id. at
322 (quoting Newton v. Rumery, 480 U.S. 386, 393 n.3
(1987)).
Garcia-Ramirez, on the other hand, petitioned our court
hoping for the possibility to avail herself of a five-month trip
she took after having been in the country illegally for less
than a year, and introduced no evidence whatsoever that she
made her trip with any expectation about immigration law
consequence. Unlike St. Cyr, Garcia-Ramirez did not bargain
away any existing legal right in reliance on the pre-IIRIRA
11672 GARCIA-RAMIREZ v. GONZALES
discretionary relief standard. In fact, in view of the absence of
contrary evidence in the record, it seems very unlikely that,
when she went to Mexico for five months, she was even con-
scious of the relief of suspension of deportation or its continu-
ous physical presence requirement, to say nothing of its
exception for “brief, casual, and innocent” trips. Even more
unlikely is the possibility that she in any way tailored her trip
to conform with that standard. The differences between St.
Cyr’s predicament and Garcia-Ramirez’s status are telling and
worth repeating: Unlike St. Cyr, Garcia-Ramirez had no
“vested right” that she gave up or bargained away; she had no
“reasonable reliance” on the law as it was before IIRIRA
implemented Congress’s reforms; and she had no “settled
expectations” of the effect of her action in departing the
United States. See St. Cyr, 533 U.S. at 321.2
Downplaying the importance of reasonable reliance and
vested rights to the St. Cyr analysis, my colleague Judge
Fisher notes that the Court in its St. Cyr opinion “presume[d]”
St. Cyr’s quid pro quo. Judge Fisher concurrence at 11662,
11666. He thus concludes that there is no need to address the
fact that there is no evidence how Garcia-Ramirez could have
reasonably relied on or even knew about pre-IIRIRA law.
Instead, in his view, we can simply assume and impute rea-
2
Moreover, the nature of the pre-IIRIRA “brief, casual, and innocent”
standard belies the conclusion that Garcia-Ramirez or aliens in a similar
circumstance could have reasonably relied on it, in connection with a five-
month sojourn outside of the United States. The “brief, casual, and inno-
cent” standard is vague and ambiguous, and Garcia-Ramirez’s five-month
excursion might not qualify as “brief, casual, and innocent” enough. If the
pre-IIRIRA standard had permitted eligibility for suspension of deporta-
tion with departures of a longer duration than the 90/180 rule, and if a per-
son could have relied objectively on a precise guideline for permissible
absence, perhaps a better case could be made that aliens could objectively
and reasonably rely on it in exiting and then reentering the country in
accord with that time frame. In light of the ambiguity of the prior standard,
and the apparent contrast of five months with its “brief” element, as it was
written, any purported reliance—for a trip of five months—cannot prop-
erly be described as objectively “reasonable.”
GARCIA-RAMIREZ v. GONZALES 11673
sonable reliance to Garcia-Ramirez from nothing more than
the “statutory structure in 1989.” See Judge Fisher concur-
rence at 11666. I disagree.
In the case of St. Cyr, the reasonable reliance factor could
be presumed by the Court because the evidence there made
reliance both apparent and objectively reasonable. See St. Cyr,
533 U.S. at 322 (“There can be little doubt that, as a general
matter, alien defendants considering whether to enter into a
plea agreement are acutely aware of the immigration conse-
quences of their convictions.”); id. (“Preserving the client’s
right to remain in the United States may be more important
to the client than any potential jail sentence.”); id. at 322 n.48
(citing state laws requiring trial judges to advise defendants of
the immigration consequences of their plea agreements); id. at
323 n.50 (citing the Amicus Brief of the National Association
of Criminal Defense Lawyers for the conclusion that “compe-
tent defense counsel, following the advice of numerous prac-
tice guides, would have advised St. Cyr concerning the
provision’s importance”); id. at 325 (“Prior to AEDPA and
IIRIRA, aliens like St. Cyr had a significant likelihood of
receiving § 212(c) relief.”).
In sharp contrast, the record in this case is void of any evi-
dence that Garcia-Ramirez even knew of the “brief, casual,
and innocent” standard, to say nothing of why it is a reason-
able assumption that she could have timed her trip purposely
to avail herself of it. But there is no question that reasonable
reliance, as illustrated in St. Cyr’s plea bargain, was central
to the Court’s retroactivity analysis. E.g., at 323 (“Given the
frequency with which § 212(c) relief was granted in the years
leading up to AEDPA and IIRIRA, preserving the possibility
of relief would have been one of the principal benefits St. Cyr
sought.”) (footnote omitted). Faced with this predicament and
with no evidence of reasonable reliance in sight, my able col-
league makes two arguments. First, he points out that subjec-
tive actual reliance is not needed, and that Garcia-Ramirez’s
case shows an objectively reasonable reliance. But the idea
11674 GARCIA-RAMIREZ v. GONZALES
that reliance need not be an actual subjective reliance is noth-
ing new, and does not address what evidence is necessary to
show reasonableness. The Court in St. Cyr considered a quid
pro quo to be an example of reasonable, not actual or subjec-
tive, reliance, presuming St. Cyr’s reliance because of the
general course of immigrant reliance on the possibility of INA
§ 212(c) discretionary relief when guilty pleas were entered.
By contrast, here, there is no suggestion that illegal immi-
grants generally display any reliance on the “brief, casual, and
innocent” standard in leaving the country for many months
before reentry in illegal status.3
Second, Judge Fisher in his separate concurrence concludes
that reasonable reliance can be assumed for Garcia-Ramirez
(and thus in every similar case) from the general “old legal
landscape” or “statutory structure in 1989.” Judge Fisher con-
currence 11667 & n.3. But this assumption effectively casts
out reasonable reliance from our retroactivity assessment, dis-
regarding the Court’s sensible instruction otherwise: “As we
have repeatedly counseled, the judgment whether a particular
statute acts retroactively should be informed and guided by
familiar considerations of fair notice, reasonable reliance,
and settled expectations.” St. Cyr, 533 U.S. at 321 (internal
quotation marks omitted) (emphasis added). My colleague’s
test would misapply the second step of the Court’s seminal
Landgraf analysis, making this second step a formality of
analysis that inescapably will lead to a jurisprudential dead-
end whenever Congress alters the “statutory structure.” Under
that form of analysis, were it adopted, the presumption against
retroactive legislation likely would be applied whenever Con-
gress has not explicitly declared retroactivity, satisfying the
3
My colleague also relies on the Court’s phrase in St. Cyr that “[t]here
is a clear difference, for the purposes of retroactivity analysis, between
facing possible deportation and facing certain deportation.” Judge Fisher
concurrence at 11661, 11664 (quoting St. Cyr, 533 U.S. at 325). In my
view, this phrase cannot be divorced from its context in St. Cyr, where it
was tied to St. Cyr’s reasonable reliance on the availability of discretion-
ary relief from deportation when he pled guilty.
GARCIA-RAMIREZ v. GONZALES 11675
first prong of the Landgraf test. The line of analysis proposed
by my colleague would go far to reduce Landgraf to a one-
step analysis.
C
Recognizing that St. Cyr cannot support his position that
this case is a “paradigm instance” of impermissible retroactiv-
ity, my colleague looks for help from our prior precedent.
Judge Fisher concurrence at 5, 7-8 (citing Kankamalage v.
INS, 335 F.3d 858, 863 (9th Cir. 2003), and United States v.
Velasco-Medina, 305 F.3d 839, 849-50 (9th Cir. 2002)). But
these cases do not assist in de-emphasizing the importance the
Supreme Court in St. Cyr placed on reasonable reliance, set-
tled expectations, and vested interests, as illustrated through
the quid quo pro of a plea bargain. In fact, both Kankamalage
and Velasco-Medina hinge on the question of whether reli-
ance on a pre-IIRIRA guilty plea was reasonable and created
settled expectations.
Jayantha Kankamalage was an alien who, like St. Cyr, pled
guilty to a conviction that would not have automatically dis-
qualified him for relief from deporation under pre-IIRIRA
law. Kankamalage, 335 F.3d at 860. We reiterated the impor-
tance of reasonable reliance: “[t]here can be little doubt that
. . . alien defendants considering whether to enter into a plea
agreement are acutely aware of the immigration consequences
of their convictions.” Id. at 863 (quoting St. Cyr, 533 U.S. at
322) (alteration in the original). Because the current regula-
tions would automatically disqualify Kankamalage from
relief, we viewed the case as “like St. Cyr,” concluding that
the petitioner, again, based on the quid pro quo of his guilty
plea, had legitimate settled expectations, and had reasonably
relied on pre-IIRIRA law. Id. We therefore held that the regu-
lation as applied to the petitioner was impermissibly retroac-
tive. Id. at 864.
Pedro Velasco-Medina also pled guilty under pre-IIRIRA
law and the statutory amendments retroactively made him
11676 GARCIA-RAMIREZ v. GONZALES
ineligible for cancellation of removal. Velasco-Medina, 305
F.3d at 843-44. However, in that case, we distinguished St.
Cyr and concluded that, because the passage of AEDPA had
already foreclosed any possibility of § 212(c) relief at the time
Velasco-Medina entered his guilty plea, the petitioner, unlike
St. Cyr, never possessed
vested rights acquired under existing laws. . . . Thus,
Velasco-Medina could not have developed the sort
of settled expectations concerning § 212(c) relief
that informed St. Cyr’s plea bargain and that ani-
mated the St. Cyr decision.
....
. . . To the extent he anticipated the continued
availability of 212(c) relief after his guilty plea, his
expectations were neither reasonable nor settled
under St. Cyr.
Id. at 849, 850 (internal quotation marks and citations omit-
ted). Far from minimizing the importance of St. Cyr’s quid
pro quo, both Kankamalage and Velasco-Medina turn on
whether an alien’s reliance and expectations stemming from
a guilty plea were settled and reasonable. These cases mention
the “legal landscape” in discussing the effect of plea bargains,
but Kankamalage and Velasco-Medina cannot correctly be
urged to support making a change of the “legal landscape”—
or the “statutory structure” as Judge Fisher also puts it—a test
unto itself.4
4
A step two Landgraf analysis in Garcia-Ramirez’s case would be akin
to our analysis in Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir.
2002). Jimenez-Angeles dealt with almost the exact same situation we face
here: the retroactive application of the continuous presence requirement
for cancellation of removal, 8 U.S.C. § 1229b(d). Like Garcia-Ramirez,
Alma Delia Jimenez-Angeles had no vested rights under pre-IIRIRA law,
expressed through a plea bargain or otherwise, but merely hoped to be
GARCIA-RAMIREZ v. GONZALES 11677
Nor can my colleague properly find support for his analysis
in extra-circuit case law. He cites two cases, from the Third
and Fourth Circuits respectively, which did not emphasize the
importance of reasonable reliance. Judge Fisher concurrence
at 11663-64 (citing cases). While no court has addressed the
exact question before us, my canvass of our sister circuits’
precedents addressing the retrospective application of other
IIRIRA provisions reveals that the great weight of authority
places a due emphasis on reliance. Far from minimizing reli-
ance, courts analyzing the retroactivity of IIRIRA provisions
under Landgraf’s second prong routinely and properly stress
the significance of reliance under St. Cyr. See, e.g., Rankine
v. Reno, 319 F.3d 93, 102 (2d Cir. 2003) (“[T]he issue of reli-
ance has played a central role in the Supreme Court’s and the
circuit courts’ reasoning with respect to the retroactivity of
IIRIRA and AEDPA.”); Chambers v. Reno, 307 F.3d 284,
289-90 (4th Cir. 2002) (recognizing that reliance was the “key
event” in St. Cyr’s retroactivity analysis).5
processed under pre-IIRIRA suspension of deportation instead of cancella-
tion of removal because she had fulfilled the temporal presence require-
ment for the former but not the latter. Jimenez-Angeles, 291 F.3d at 597.
Analyzing the retroactivity claim under step two of Landgraf, we held that
her “expectation” or “hope” that she could avail herself of suspension of
deportation “was not equivalent to the settled expectation St. Cyr gained
by entering into his plea bargain.” Id. at 602 (“A plea bargain is a formal
exchange in which each side consensually gives, and gets, something of
value. In Jimenez-Angeles’ case, there was no such exchange.”). In con-
trast to a formal plea bargain or any other evidence of reasonable reliance
and settled expectations, Garcia-Ramirez, like Jimenez-Angeles, “gave up
only her ability to continue living illegally and undetected in the United
States.” Id.
5
Most circuits have declined to find reasonable reliance and impermissi-
ble retroactive effect beyond the plea agreement context of St. Cyr. The
provision most frequently litigated has been IIRIRA’s repeal of INA
§ 212(c), the same provision at issue in St. Cyr. Most courts have held
IIRIRA not impermissibly retroactive as applied to petitioners who did not
enter a plea agreement like St. Cyr because, without the quid pro quo of
the plea agreement, no evidence exists from which to show a petitioner’s
11678 GARCIA-RAMIREZ v. GONZALES
Judge Fisher’s separate concurrence does not disclose a
case, in our circuit or any other, in which a federal court has
determined that there was reasonable reliance in the manner
in which he would determine reliance, devoid of evidence or
persuasive rationale why reliance, whether subjectively or
objectively grounded, should be reasonably presumed for a
class of persons situated similarly to the petitioner, save his
general argument about change in the “statutory structure.”6
reasonable reliance on the pre-IIRIRA provision. See, e.g., Swaby v. Ash-
croft, 357 F.3d 156, 161-62 (2d Cir. 2004) (holding that IIRIRA’s repeal
of INA § 212(c) was not impermissibly retroactive because, unlike St.
Cyr, the petitioner chose to proceed to trial instead of agreeing to a plea
and therefore “did not detrimentally rely on the availability of § 212(c)
relief”); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (per
curiam) (holding that IIRIRA’s repeal of INA § 212(c) relief not imper-
missibly retroactive as applied to petitioners who “did not abandon rights
or admit guilt in reliance on continued eligibility for § 212(c) relief”);
Rankine, 319 F.3d at 100 (same); Dias v. INS, 311 F.3d 456, 458 (1st Cir.
2002) (holding that IIRIRA’s repeal of § 212(c) was not impermissibly
retroactive to petitioners who did not rely on pre-IIRIRA law because the
“retroactivity analysis must include an examination of reliance”) (citing
Mattis v. Reno, 212 F.3d 31 (1st Cir. 2000)); Brooks v. Ashcroft, 283 F.3d
1268, 1274 (11th Cir. 2002) (holding that the repeal of § 212(c) was not
impermissibly retroactive because, unlike St. Cyr, petitioner “did not so
choose to rely upon the agreed upon terms of a plea” and because his case
did not present “the same concerns of quid pro quo, benefit for an
exchange, between a defendant and the government”).
Courts have declined to extend St. Cyr to other provisions of IIRIRA
as well. See, e.g., Uspango v. Ashcroft, 289 F.3d 226, 230 (3d Cir. 2002)
(holding that the application of cancellation of removal’s ten-year pres-
ence requirement to the petitioner was not impermissibly retroactive
because “[u]nlike the situation in St. Cyr, [the petitioner] can demonstrate
no detrimental reliance on pre-[IIRIRA] law” and “[the petitioner] gave up
no rights . . . nor did [the government] receive any benefits from [the peti-
tioner’s action]”); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 108-09
(4th Cir. 2001) (holding that IIRIRA § 241(a), requiring removal of aliens
previously ordered removed, did not operate in an impermissibly retroac-
tive manner because, unlike St. Cyr, the petitioner could not show “a rea-
sonable likelihood of success under pre-IIRIRA law nor a detrimental
reliance on pre-IIRIRA law”).
6
As explained above, the only cases that my colleague cites relying on
language equivalent to its “statutory structure” language is the “legal land-
GARCIA-RAMIREZ v. GONZALES 11679
Nor does my able colleague point to any other case holding
§ 1229b(d)(2) or a comparable temporal provision of IIRIRA
impermissibly retroactive.
II
In almost any instance of immigration law reform, it will
be the case that a multitude of illegal aliens were residing
within the United States and its “legal landscape” or “statu-
tory structure” when Congress acted to change the immigra-
tion law. It perhaps should not need repeating that the
Constitution gives the superordinate role to Congress, and not
to the federal courts, in regulating the flow and content of
immigration to the United States. The world changes rapidly,
and illegal immigration may pose threats or disadvantage to
the United States’ security, economy, and well-being. Con-
gress needs flexibility in fine-tuning our immigration laws. St.
Cyr carves out an exceptional area where reasonable reliance
constrains the ability of Congress to alter immigration law.
But nothing in St. Cyr or its immigration law progeny in the
federal courts makes welcome a far-reaching pronouncement
that impermissible retroactivity will likely follow from
change to the “statutory structure.” Such a rationale would
restrict the ability of Congress to implement law reform, in
the absence of explicit declarations of retroactivity, and would
scape” language of Velasco-Medina, 305 F.3d at 849, and Kankamalage,
335 F.3d at 863. But neither of those cases in fact relies upon such a ratio-
nale, as both hinge upon the evidence of reasonable reliance (or lack
thereof) arising from a plea agreement’s quid pro quo, just as in St. Cyr.
Kankamalage, 335 F.3d at 863-64; Velasco-Medina, 305 F.3d at 850.
More recently, in Kelava v. Gonzales, we held that IIRIRA’s repeal of
INA § 212(c) is not impermissibly retroactive as applied to an alien who
engaged in a terrorist activity that occurred prior to IIRIRA’s enactment.
410 F.3d 625, 630 (9th Cir. 2005). As relevant here, in Kelava we reiter-
ated the importance of a plea showing reasonable reliance in applying the
retroactivity analysis of St. Cyr: “We have cabined St. Cyr to the plea con-
text, because of the alien’s reliance on existing law in that situation.” Id.
at 629.
11680 GARCIA-RAMIREZ v. GONZALES
have unforseen negative consequences for the immigration
laws.7
Mendiola-Sanchez supports our denial of the petition with-
out reaching Landgraf’s second step. However, were we to
reach the second step, I would still deny the petition because
the application of the 90/180-day rule would not have an “im-
permissible retroactive effect.”
7
For example, during the pendency of our deliberations on this matter
Congress enacted the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat.
231. The REAL ID Act alters several provisions of the Immigration and
Nationality Act, amending the INA provisions governing our judicial
review as well as amending certain standards governing asylum and other
forms of relief from removal, including burdens of proof, testimonial cor-
roboration, credibility determinations, and the definition of terrorist orga-
nizations and terrorist related activities. See, e.g., 8 U.S.C. § 1252(a) as
amended by § 106(a) of the REAL ID Act, 119 Stat. 305, 310; 8 U.S.C.
§ 1158(b) as amended by § 101(a)(3), (c), and (d)(2) of the REAL ID Act,
119 Stat. 302, 303; 8 U.S.C. § 1182(a)(3)(B) as amended by § 103 of the
REAL ID Act, 119 Stat. 306-309.