Lopez-Castellanos v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL LOPEZ-CASTELLANOS, 
Petitioner, No. 01-71848
v.
 Agency No.
A92-428-513
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 11, 2003—Pasadena, California
Submission Withdrawn February 24, 2003
Resubmitted February 16, 2006
Filed February 16, 2006
Before: Betty B. Fletcher and Michael Daly Hawkins,
Circuit Judges, and David C. Bury,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
1751
1754 LOPEZ-CASTELLANOS v. GONZALES
COUNSEL
Steven W. Brown, Encinitas, California, and Peter James
Musser, Vista, California, for the appellant.
Susan K. Houser; Carl H. McIntyre, Jr.; and Robert D.
McCallum, Jr; U.S. Department of Justice, for the appellee.
OPINION
B. FLETCHER, Circuit Judge:
Petitioner-Appellant Manuel Lopez-Castellanos petitions
for review of a decision by the Board of Immigration Appeals
(BIA) finding him ineligible for relief under Immigration and
Nationality Act (INA) § 240A(b), 8 U.S.C. § 1229b. We deny
relief.
LOPEZ-CASTELLANOS v. GONZALES 1755
I.
Lopez-Castellanos entered the United States illegally in
1978 and has resided here continuously since that time. On
October 21, 1988, he pled guilty to one count of lewd or las-
civious acts with a child under the age of 14, in violation of
California Penal Code § 288(a).
At the time of his conviction, this act was not considered
an “aggravated felony” under the immigration laws.1 More-
over, the conviction had no bearing on Lopez-Castellanos’s
eligibility for a discretionary waiver of deportation. However,
several new immigration provisions enacted after Lopez-
Castellanos’s conviction changed this scenario, and the Gov-
ernment, which instituted removal proceedings after the pas-
sage of those provisions, argues that Lopez-Castellanos is
ineligible for relief. Although we disagree with much of the
Government’s analysis, we deny relief on other grounds.
II.
The agency instituted removal proceedings on December
13, 1999. Shortly thereafter, Lopez-Castellanos conceded
removability before an immigration judge (IJ) but requested
cancellation of removal or, in the alternative, voluntary depar-
ture. The IJ issued an oral decision on May 17, 2000, finding
that Lopez-Castellanos was ineligible for either cancellation
of removal or voluntary departure. That decision was
appealed to the BIA, which affirmed the decision denying
cancellation of removal but reversed the voluntary-departure
holding. Lopez-Castellanos appealed that ruling to this court,
and oral arguments were heard on February 11, 2003.
Because, at that time, Lopez-Castellanos’s voluntary-
departure petition was still pending before the agency, we
withdrew submission pending the outcome of that review. On
1
He was sentenced to one day of incarceration and three years of proba-
tion.
1756 LOPEZ-CASTELLANOS v. GONZALES
November 17, 2005, the IJ denied Lopez-Castellanos’s appli-
cation for voluntary departure, and he did not appeal. Conse-
quently, we consider solely the question concerning Lopez-
Castellanos’s eligibility for a discretionary waiver of deporta-
tion.
III.
The IJ’s May 17, 2000 decision dismissed Lopez-
Castellanos’s application for a discretionary waiver on three
separate grounds. First, the IJ pointed out that Lopez-
Castellanos’s prior conviction for a lewd and lascivious act
with a child under the age of 14 under California Penal Code
§ 288(a) fell under the definition of “aggravated felony” in
INA § 101(a)(43)(A). Consequently, the IJ found Lopez-
Castellanos ineligible for cancellation of removal under 8
U.S.C. § 1229b(b)(1) because of his conviction for an offense
listed under 8 U.S.C. § 1227(a)(2).
Second, the IJ found that Lopez-Castellanos could not meet
his burden of proving good moral character because of that
prior conviction. As the IJ noted, “Although the conviction
occurred more than ten years ago, I do find that the respon-
dent is unable to prove that he is a person of good moral char-
acter because he has been convicted of this aggravated
felony.”
Third, the IJ noted the statutory bar of 8 U.S.C. § 1101(f),
which would purportedly render Lopez-Castellanos ineligible
for a discretionary waiver as well. As the IJ stated, “Section
1101(f)(8) of the [INA] states that no person can be consid-
ered to be a person of good moral character if that person has,
at any time, been convicted of an aggravated felony.”
The BIA affirmed the determination regarding cancellation
of removal but reversed on voluntary departure.2 With respect
2
The IJ had employed the same reasoning under 8 U.S.C. § 1101(f)(8)
to deny Lopez-Castellanos voluntary-departure relief. The IJ revisited that
issue and again denied relief, presumably on discretionary grounds, and
Lopez-Castellanos has not appealed.
LOPEZ-CASTELLANOS v. GONZALES 1757
to cancellation of removal, the BIA endorsed only the IJ’s
first rationale — namely, that Lopez-Castellanos’s 1988 con-
viction fell under the list of enumerated offenses barring
cancellation-of-removal relief. The BIA rejected the argument
that Lopez Castellanos was eligible for discretionary relief
under the previous suspension-of-deportation statute.
A.
[1] 8 U.S.C. § 1101(f)(8) precludes a finding of good moral
character for anyone convicted of an “aggravated felony.”
That section provides, “No person shall be regarded as, or
found to be, a person of good moral character who, during the
period for which good moral character is required to be estab-
lished, is or was . . . one who at any time has been convicted
of an aggravated felony.” 8 U.S.C. § 1101(f)(8).
[2] Before November 29, 1990, a conviction for an aggra-
vated felony related only to noncitizens convicted of murder.
The Immigration Act of 1990 amended INA § 101(f)(8) by
substituting the phrase “aggravated felony” for “crime of mur-
der.” See 8 U.S.C. § 1101(f)(8), as amended by Pub. L. No.
101-649, § 509, 104 Stat. 4978, 5051. This amendment took
effect on the date of the enactment of the Immigration Act of
1990 (November 29, 1990) and applies to convictions on or
after that date. In United States v. Hovsepian, 359 F.3d 1144,
1165-69 (9th Cir. 2004) (en banc), this court made it clear that
“Congress explicitly limited the reach of § 1101(f)(8) to con-
duct occurring after November 29, 1990, the effective date of
the statute.”3 Thus, 8 U.S.C. § 1101(f)(8) would not appear to
3
There is an exception to this rule solely in cases of pre-1990-Act mur-
der convictions. In those cases, the prior conviction precludes a finding of
good moral character, regardless of the date of the conviction. The Miscel-
laneous and Technical Immigration and Naturalization Amendments of
1991, Pub. L. No. 102-232, § 306(a)(7), 105 Stat. 1733, amended section
509(b) of the 1990 Act, making a murder conviction a bar to good moral
character, regardless of the date of the conviction. Accord Castiglia v. INS,
108 F.3d 1101, 1103-04 (applying 8 U.S.C. § 1101(f) to a pre-1990-Act
murder conviction).
1758 LOPEZ-CASTELLANOS v. GONZALES
apply to Lopez-Castellanos because his conviction took place
before that time.4
B.
The Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 (IIRIRA) eliminated a certain form of relief
known as “suspension of deportation” for individuals like
Lopez-Castellanos. IIRIRA eliminated suspension of deporta-
tion and replaced it with a similar (though somewhat more
burdensome) kind of relief known as “cancellation of remov-
al.”
Before the passage of IIRIRA, the Attorney General could
“suspend” deportation of a deportable alien who could prove
(1) continuous physical presence within the United States for
a period of not less than seven years immediately preceding
the date of the application; (2) that s/he was and is a person
of good moral character during that period; and (3) that s/he
is a person whose deportation would, in the opinion of the
Attorney General, result in extreme hardship to the alien or to
his spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.
See INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (repealed 1996).
[3] IIRIRA § 304(a)(3) repealed suspension-of-deportation
relief and essentially replaced it with a form of cancellation-
of-removal relief, codified at 8 U.S.C. § 1229b(b). Under this
provision, the Attorney General (or his designated representa-
tive) can “cancel removal” of a nonpermanent resident alien
— defined as “an alien lawfully admitted for permanent resi-
dence, an alien who is inadmissible or deportable from the
United States,” see 8 U.S.C. § 1229b(b)(1) — who establishes
(1) continuous physical presence within the United States for
4
The BIA essentially agreed with that conclusion when it reversed the
IJ’s holding that § 1101(f)(8) rendered Lopez-Castellanos statutorily ineli-
gible for voluntary departure.
LOPEZ-CASTELLANOS v. GONZALES 1759
a period of not less than 10 years immediately preceding the
date of such application; (2) that s/he has been a person of
good moral character during such period; (3) that s/he has not
been convicted of certain specified offenses (which includes,
among other things, aggravated felonies); (4) that removal
would result in exceptional and extremely unusual hardship to
the respondent’s spouse, parent, or child who is a citizen of
the United States or an alien lawfully admitted for permanent
residence; and (5) that s/he deserves the remedy in an exercise
of discretion.
Removal proceedings were not initiated until after IIRIRA
became effective, and the parties dispute the form of discre-
tionary relief — suspension of deportation or cancellation of
removal — applicable to Lopez-Castellanos. The difference is
important because, under the newer statute, Lopez-
Castellanos would be ineligible for relief due to his previous
aggravated felony, see 8 U.S.C. § 1229b(b)(1)(c)). Thus,
Lopez-Castellanos argues that he remains eligible for a discre-
tionary waiver under the pre-IIRIRA law applicable at the
time of his conviction.
IV.
[4] At the time of Lopez-Castellanos’s conviction, the list
of aggravated felonies under the INA did not include lewd
and lascivious acts with a child. IIRIRA broadened the list of
aggravated felonies to include “murder, rape, or sexual abuse
of a minor.” 8 U.S.C. § 1101(a)(43)(A). Although Lopez-
Castellanos would not have been considered an aggravated
felon at the time of his conviction, it is settled law that the
effective-date provision of the definitional statute, IIRIRA
§ 321, which defines certain crimes as aggravated felonies,
applies regardless of the date of the commission of the crime.
On that definitional issue, our law is clear. See Aragon-Ayon
v. INS, 206 F.3d 847, 853 (9th Cir. 2000). See also INS v. St.
Cyr, 533 U.S. 289, 319 (2001) (“IIRIRA’s amendment of the
definition of ‘aggravated felony’ . . . clearly states that it
1760 LOPEZ-CASTELLANOS v. GONZALES
applies with respect to ‘conviction[s] . . . entered before, on,
or after’ the statute’s enactment date.”). Lopez-Castellanos’s
conviction meets the definition of an aggravated felony, and
the question whether the substantive immigration conse-
quences of IIRIRA apply to him is controlled by St. Cyr.
A.
[5] In Landgraf v. USI Film Products, 511 U.S. 244 (1994),
the Supreme Court established a two-part test to determine
whether a statute should have retroactive effect:
When a case implicates a federal statute enacted
after the events in suit, the court’s first task is to
determine whether Congress has expressly pre-
scribed the statute’s proper reach. If Congress has
done so, of course, there is no need to resort to judi-
cial default rules. When, however, the statute con-
tains no such express command, the court must
determine whether the new statute would have retro-
active effect, i.e., whether it would impair rights a
party possessed when he acted, increase a party’s lia-
bility for past conduct, or impose new duties with
respect to transactions already completed. If the stat-
ute would operate retroactively, our traditional pre-
sumption teaches that it does not govern absent clear
congressional intent favoring such a result.
511 U.S. at 280.5 Under this two-part test, a court must first
analyze whether Congress has clearly prescribed the retroac-
tive effect of a given statute. Id. at 250-63. In the absence of
such legislative intent, the Court presumes that the statute has
only prospective application. Id. at 280-86.
5
See also id. at 269-70 (“[T]he court must ask whether the new provi-
sion attaches new legal consequences to events completed before its enact-
ment . . . . [F]amiliar considerations of fair notice, reasonable reliance, and
settled expectations offer sound guidance.”).
LOPEZ-CASTELLANOS v. GONZALES 1761
[6] In St. Cyr, the Court applied Landgraf analysis in a sce-
nario quite similar to the one raised here. The petitioner,
Enrico St. Cyr, had pleaded guilty to selling a controlled sub-
stance and had entered into a plea prior to the passage of
IIRIRA. The INS instituted removal proceedings after IIRIRA
had taken effect, and thus the Attorney General took the posi-
tion that § 212(c)) relief was no longer available. The Court
held that IIRIRA § 304(b) (the provision that repealed
§ 212(c)) and replaced it with the narrower form of relief
available in 8 U.S.C. § 1229b) could not be applied retroac-
tively to bar St. Cyr from applying for cancellation of removal
because, first, Congress had not expressed a clear statement
that the statute have retroactive effect, and, second, making
§ 304(b) retroactive would upset the likely expectations
informing St. Cyr’s decision to enter into the plea bargain in
the first place. 533 U.S. at 314-26.
[7] St. Cyr applies to Lopez-Castellanos’s situation, first,
because it establishes the lack of any clear statement that
IIRIRA’s cancellation of removal statute be applied retroac-
tively. St. Cyr, 533 U.S. at 317-20. To 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. See id. at 326. Applying IIRIRA retroac-
tively would “attach[ ] a new disability, in respect to transac-
tions or considerations already past.” Landgraf, 511 U.S. at
269.
B.
[8] The BIA distinguished St. Cyr on grounds that Lopez-
Castellanos, “as an alien without lawful status in this country
. . . could hardly have had any settled expectation that he
would not be deported from this country should he engage in
criminal conduct.” However, Lopez-Castellanos’s status as a
deportable alien does not in and of itself affect his ability to
apply for cancellation of removal. The statute plainly includes
1762 LOPEZ-CASTELLANOS v. GONZALES
illegal aliens — “an alien who is inadmissible or deportable
from the United States,” see 8 U.S.C. § 1229b(b)(1) — and
thus one’s status as a deportable alien simply does not resolve
the question whether s/he is eligible for cancellation of
removal. Lopez-Castellanos’s illegal status has no bearing on
any settled expectations he might have had with respect to his
ability to seek relief from deportation, once deportation pro-
ceedings commenced. That relief remained available at the
time he entered his plea, and thus it cannot be taken away on
the sole ground of his eligibility for deportation.
Of course, mere eligibility for cancellation of removal does
not require that such relief be granted. And, crucial to this
case, the IJ denied relief on a discretionary ground we cannot
review.
V.
[9] As previously explained, the IJ determined, as a second
basis for rejecting the application, that Lopez-Castellanos’s
aggravated-felony conviction precluded him from demonstrat-
ing good moral character, a necessary predicate to relief. 8
U.S.C. § 1229b(b). We are bound by that discretionary deter-
mination, which is insulated from federal review. See Moran
v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005) (indicating
that a good moral character determination is only reviewable
where it is based on one of the statutory exclusions found in
8 U.S.C. § 1101(f)). Because we lack jurisdiction to consider
that discretionary determination, we deny relief.
PETITION FOR REVIEW DENIED.