Jurado-Delgado v. Attorney General of the United States

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-15-2009
Jurado-Delgado v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4495
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD DISTRICT
_____________
No. 06-4495/07-1924
_____________
JIMMY JURADO-DELGADO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent.
_____________
Petition for Review of an Order of the United States
Department of Justice Board of Immigration Appeals
(BIA No. A38-846-972)
Immigration Judge Walter Durling
_____________
Argued July 22, 2008
Before: SLOVITER, JORDAN, and ALARCON*, Circuit Judges.
_____________
(Filed: January 15, 2009)
_____________
George A. Terezakis [ARGUED]
170 Old Country Road
Mineola, NY 11501
Counsel for Petitioner
_______________
*Honorable Arthur L. Alarcon, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Jesse M. Bless [ARGUED]
Edward J. Duffy
Ernesto H. Molina
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_____________
OPINION OF THE COURT
_____________
JORDAN, Circuit Judge.
Jimmy Jurado-Delgado petitions for review of a final order of the Board of
Immigration Appeals (“BIA”).1 He argues, among other things, that the BIA’s
determination that he is ineligible for cancellation of removal under 8 U.S.C. § 1229b is
the result of an impermissible, retroactive application of that statute. In his view, the
BIA, when determining whether he was statutorily eligible for cancellation of removal,
was not entitled to take into account crimes that he committed prior to Congress’s
creation of that remedy. We disagree, and for the reasons that follow we will deny the
petition for review.
I. Background
Jurado-Delgado was born in Ecuador and was admitted to the United States as a
permanent resident on September 15, 1985. Since that time, he has been no stranger to
1
Jurado-Delgado actually filed two petitions associated with the same case. As the
petitions implicate the identical issues, we treat them as one for purposes of this opinion.
2
the criminal justice system.2 Of particular pertinence in this case, within seven years of
his admission, he committed and was convicted of two crimes in Pennsylvania. On June
25, 1991, he pleaded guilty to retail theft in violation of 18 Pa. Cons. Stat. Ann.
§ 3929(a)(1). Then, on October 15, 1992, he pleaded guilty to making an unsworn
falsification to authorities in violation of 18 Pa. Cons. Stat. Ann. § 4904(a). He
committed those crimes on March 27, 1991, and December 19, 1991, respectively.
Jurado-Delgado pleaded guilty to two more crimes in 1997. On January 6, 1997,
he was convicted of attempting to commit theft by unlawful taking in violation of 18 Pa.
Cons. Stat. Ann. §§ 901, 3921(a). Later that year, on June 10, 1997, he was convicted of
conspiracy to commit retail theft, in violation of 18 Pa. Cons. Stat. Ann. § 903(a).
On October 27, 2001, the former Immigration and Naturalization Service (“INS”)3
served Jurado-Delgado with a notice to appear, charging him as removable 4 from the
United States under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes
of moral turpitude that did not arise out of a single scheme of criminal misconduct. The
2
Five of Jurado-Delgado’s convictions are relevant to the issues on appeal; however,
the record indicates that his criminal record may be even more extensive.
3
In 2003, the INS was abolished and the responsibility for enforcing the relevant
immigration laws was transferred to the Bureau of Immigration and Customs
Enforcement, which is within the Department of Homeland Security. See Homeland
Security Act of 2002, Pub L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205
(2002).
4
“The term ‘removable’ means ... in the case of an alien admitted to the United States,
that the alien is deportable under [8 U.S.C. § 1227].” 8 U.S.C. § 1229a(e)(2).
3
notice to appear specified that the bases for the charge were Jurado-Delgado’s 1997
convictions for attempting to commit theft and conspiracy to commit retail theft. The
notice did not mention Jurado-Delgado’s 1991 and 1992 convictions.
On December 22, 2005, while the removal proceedings were still pending, the
Department of Homeland Security (“DHS”) lodged an additional charge of removability
under 8 U.S.C. § 1227(a)(3)(D), which makes removable any alien who has falsely
represented himself to be a United States citizen for any purpose under federal law. The
new charge stemmed from Jurado-Delgado’s making false statements in an application
for a United States passport in 2004.
Jurado-Delgado conceded before an Immigration Judge (“IJ”) that he was
removable either under 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two
crimes involving moral turpitude in 1997, or under 8 U.S.C. § 1227(a)(3)(D), for having
falsely represented himself to be a United States citizen, but he requested cancellation of
removal under 8 U.S.C. § 1229b(a). Section 1229b was enacted in 1996, became
effective in 1997, and gives the Attorney General the authority to allow an otherwise
removable alien to remain in this country if the alien meets certain statutory criteria. The
DHS opposed Jurado-Delgado’s application for cancellation of removal, arguing that his
commission of two crimes in 1991 made him ineligible for that relief. On February 7,
2006, the IJ granted Jurado-Delgado’s request for cancellation of removal. In the
process, the IJ rejected the DHS’s argument that Jurado-Delgado’s 1991 crimes made him
4
statutorily ineligible. According to the IJ, those crimes could not affect his eligibility for
cancellation of removal because the DHS had not charged Jurado-Delgado with being
removable based on those crimes, either in the original notice to appear or in the
document lodging the additional charge of removability.
The DHS appealed the IJ’s decision to the BIA. On September 28, 2006, the BIA
vacated the IJ’s grant of cancellation of removal and ordered Jurado-Delgado removed
from the United States. In re Jurado-Delgado, 24 I. & N. Dec. 29, 36 (B.I.A. 2006). It
determined that Jurado-Delgado’s 1991 and 1992 convictions were for crimes involving
moral turpitude, which, because they were committed in 1991, within seven years of his
admission, made him statutorily ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(a). Jurado-Delgado, 24 I. & N. Dec. at 33-35. In arriving at its decision, it held
that the DHS was not required to have noted the 1991 and 1992 convictions in the notice
to appear or other charging document. Id. at 31-32. In addition, the BIA rejected Jurado-
Delgado’s argument that allowing those crimes to affect his eligibility for cancellation of
removal amounted to an impermissible, retroactive application of the statute. Id. at 32.
Jurado-Delgado filed a motion for reconsideration, which the BIA denied on February 27,
2007.
Jurado-Delgado now petitions for review in this Court. We have jurisdiction under
8 U.S.C. § 1252(a) to review the questions of law and constitutional claims raised in his
petition. 8 U.S.C. § 1252(a)(1),(a)(2)(D).
5
II. Discussion 5
A. Eligibility for Cancellation of Removal Under 8 U.S.C. § 1229b.
Jurado-Delgado does not challenge the determination that he is removable either
under 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two crimes involving
moral turpitude in 1997, or under 8 U.S.C. § 1227(a)(3)(D), for having falsely represented
himself to be a United States citizen in 2004. Instead, he takes issue with the BIA’s
determination that his commission of two crimes in 1991 makes him ineligible for
cancellation of removal under § 1229b.
As alluded to earlier, 8 U.S.C. § 1229b(a) gives the Attorney General the authority
to cancel the removal of certain permanent residents who meet the statutory criteria. It
provides:
The Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable from the United States
if the alien–
(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years,
(2) has resided in the United States continuously
for 7 years after having been admitted in any
status, and
(3) has not been convicted of any aggravated
felony.
8 U.S.C. § 1229b(a). In determining whether an alien has fulfilled the seven-year
continuous residence requirement set forth in § 1229b(a)(2), it is necessary to consult
5
We review the BIA’s legal determinations de novo but will defer to its reasonable
interpretations of the statutes it is charged with administering. Arca-Pineda v. Att’y Gen.,
527 F.3d 101, 103 (3d Cir. 2008).
6
§ 1229b(d)(1), which states that a period of continuous residence is deemed to end when
the alien receives a notice to appear or when the alien commits an offense that would
make him inadmissible or removable under certain sections of the immigration statutes.
More specifically, § 1229b(d)(1) provides:
[A]ny period of continuous residence ... in the United States
shall be deemed to end (A) ... when the alien is served a
notice to appear under [8 U.S.C. § 1229(a)], or (B) when the
alien has committed an offense referred to in [8 U.S.C.
§ 1182(a)(2)] that renders the alien inadmissible to the United
States under [8 U.S.C. § 1182(a)(2)] or removable from the
United States under [8 U.S.C. §§ 1227(a)(2) or 1227(a)(4)],
whichever is earliest.
That section is known as the “stop-time rule.”
On appeal, Jurado-Delgado makes two arguments regarding his eligibility for
cancellation of removal. First, he argues that his 1991 crimes did not stop his accrual of
time toward a period of seven years of continuous residence because those crimes did not
render him inadmissible under the relevant sections of the immigration statutes. Second,
he argues that, even if they did, the BIA’s determination that those crimes made him
ineligible for cancellation of removal resulted from a retroactive, and hence improper,
application of 8 U.S.C. § 1229b. We reject both of those arguments.
1. Crimes Involving Moral Turpitude
First we address whether the crimes Jurado-Delgado committed in 1991 are the
type of crimes that stop the accrual of a period of continuous residence pursuant to
§ 1229b(d)(1). If they are, Jurado-Delgado is statutorily ineligible for cancellation of
7
removal under § 1229b(a) because he committed those crimes prior to attaining the
requisite seven years of continuous residence in the United States.
Section 1229b(d)(1)(B) states that the commission of an offense that is “referred
to” in 8 U.S.C. § 1182(a)(2) and that “renders the alien inadmissible to the United States”
under that section stops time from accruing towards a period of continuous residence.
Section 1182(a)(2), in turn, provides that an alien is inadmissible if he commits a crime
involving moral turpitude. The statute states, in relevant part:
Except as provided in [§ 1182(a)(2)(A)(ii)], any alien
convicted of, or who admits having committed, or who admits
committing acts which constitute the essential elements of ... a
crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime
... is inadmissible.
8 U.S.C. § 1182(a)(2)(A)(i).
In this case, the BIA determined that both of the crimes committed by Jurado-
Delgado in 1991 were crimes involving moral turpitude, which rendered him inadmissible
under 8 U.S.C. § 1182(a)(2)(A)(i).6 On appeal, Jurado-Delgado challenges that
6
Section 1182(a)(2)(A)(ii) provides an exception for aliens who committed only one
crime involving moral turpitude, if other statutory criteria are met. In determining that the
stop-time rule applied to Jurado-Delgado, the BIA said that exception does not apply to
him because Jurado-Delgado committed two crimes in 1991. Because we agree with the
BIA that both of Jurado-Delgado’s 1991 crimes involved moral turpitude, we express no
opinion as to whether he would have been eligible for cancellation of removal had he
committed only one crime involving moral turpitude before attaining seven years of
continuous residence.
Although the BIA held that Jurado-Delgado’s commission of two crimes involving
moral turpitude in 1991 rendered him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i) and
thus stopped his accrual of a period of continuous residence under § 1229b(d)(1), we note
8
determination.7 He first argues that his retail theft in violation of 18 Pa. Cons. Stat. Ann.
§ 3929(a)(1)8 does not constitute a crime involving moral turpitude because, according to
Jurado-Delgado, the statute does not require that the store be permanently deprived of its
merchandise. This hardly merits a response since it is perfectly clear that the statute is not
aimed at borrowing. Any fair reading of the statute recognizes it is aimed at theft, and no
one disputes that theft involves moral turpitude. See, e.g., Briseno-Flores v. Att’y Gen.,
492 F.3d 226, 228 (3d Cir. 2007) (recognizing that petty theft qualifies as a crime
involving moral turpitude); Quilodran-Brau v. Holland, 232 F.2d 183, 184 (3d Cir. 1956)
(“It is well settled as a matter of law that the crime of larceny is one involving moral
turpitude regardless of the value of that which is stolen.”); In re Scarpulla, 15 I. & N.
Dec. 139, 140-41 (B.I.A. 1974) (“It is well settled that theft or larceny, whether grand or
petty, has always been held to involve moral turpitude.”).
that his commission of those two crimes also rendered him removable under
§ 1227(a)(2)(A)(ii), which was also sufficient to stop his accrual of a period of
continuous residence under § 1229b(d)(1).
7
We review de novo the BIA’s interpretation of a state criminal statute, but defer to the
BIA’s reasonable interpretation of whether the elements of that statute involve moral
turpitude. Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004).
8
A person commits retail theft in violation of 18 Pa. Cons. Stat. Ann. § 3929(a)(1) if he
“takes possession of, carries away, transfers or causes to be carried away or transferred,
any merchandise displayed, held, stored or offered for sale by any store or other retail
mercantile establishment with the intention of depriving the merchant of the possession,
use or benefit of such merchandise without paying the full retail value thereof.”
9
Next, Jurado-Delgado argues that his making an unsworn falsification to
authorities in violation of 18 Pa. Cons. Stat. Ann. § 4904(a)9 does not constitute a crime
involving moral turpitude because the statute does not require that the false statement
have been made under oath. Jurado-Delgado has not cited any authority for the
proposition that deliberately lying to government officials is not a crime involving moral
turpitude if it is not also perjury. Since § 4904(a) requires as one of its elements that the
false statement be made “with intent to mislead a public servant in performing his official
function,” we agree with the BIA that a violation of that statute qualifies as a crime
involving moral turpitude. See, e.g., Rodriguez v. Gonzales, 451 F.3d 60, 64 (2d Cir.
2006) (recognizing that “deceit and an intent to impair the efficiency and lawful
functioning of the government” involves moral turpitude); Padilla v. Gonzales, 397 F.3d
1016, 1020 (7th Cir. 2005) (“[A]lmost all courts have held that intentionally deceiving the
government involves moral turpitude.” (quotation marks and citation omitted)); In re
Flores, 17 I. & N. Dec. 225, 229 (B.I.A. 1980) (holding that a crime involves moral
turpitude if it “impair[s] or obstruct[s] an important function of a department of the
government by defeating its efficiency ... by deceit, graft, trickery, or dishonest means”).
9
A person commits unsworn falsification to authorities in violation of 18 Pa. Cons.
Stat. Ann. § 4904(a) if, “with intent to mislead a public servant in performing his official
function, he: (1) makes any written false statement which he does not believe to be true;
(2) submits or invites reliance on any writing which he knows to be forged, altered or
otherwise lacking in authenticity; or (3) submits or invites reliance on any sample,
specimen, map, boundary mark, or other object which he knows to be false.”
10
We therefore reject Jurado-Delgado’s arguments and agree with the BIA that both of his
1991 crimes involved moral turpitude.
2. “Retroactivity” of 8 U.S.C. § 1229b
Next, Jurado-Delgado argues that the BIA’s determination that his 1991 crimes bar
cancellation of removal is the product of a retroactive application of 8 U.S.C. § 1229b.
We disagree.
Questions of retroactivity arise “[w]hen a case implicates a federal statute enacted
after the events in suit.” Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). This is
not such a case. At least one event independently giving rise to a charge of removability
in this case occurred after Congress’s enactment of 8 U.S.C. § 1229b, which became
effective on April 1, 1997. See Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, §§ 304(a), 309(a), 110 Stat. 3009-546,
3009-594,-625 (Sept. 30, 1996). Specifically, in 2004, Jurado-Delgado falsely
represented himself to be a United States citizen in an application for a United States
passport, which resulted in him being deportable under 8 U.S.C. § 1227(a)(3)(D)(i) (“Any
alien who falsely represents ... himself to be a citizen of the United States for any purpose
or benefit under ... any Federal or State law is deportable.”).10 At the time Jurado-
Delgado committed that offense, the law provided, as it does now, that a deportable alien
10
After IIRIRA, proceedings for deciding the deportability or inadmissability of an
alien are called “removal proceedings.” See 8 U.S.C. § 1229a. An alien who has been
admitted to the United States is removable if the alien is deportable under 8 U.S.C.
§ 1227. 8 U.S.C. § 1229a(e)(2).
11
is statutorily eligible for discretionary relief from removal under § 1229b(a) only if the
alien has resided continuously in the United States for seven years without committing
one of the offenses listed in § 1229b(d)(1)(B). 8 U.S.C. § 1229b(a)(2),(d)(1)(B).
Because the BIA applied the law in effect at the time Jurado-Delgado committed the
deportable offense, no question of retroactivity is implicated.11
Jurado-Delgado relies on the Supreme Court’s decision in INS v. St. Cyr, 533 U.S.
289 (2001), to support his retroactivity argument, but the circumstances in that case were
very different. In St. Cyr, the Supreme Court considered whether Congress’s repeal,
through IIRIRA, of former § 212(c) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1182(c) (repealed), which granted the Attorney General discretion to waive
deportation in cases where an alien had accrued seven years of lawful residence in the
United States, was impermissibly retroactive as applied to an alien who had pleaded
guilty to a deportable crime in reliance on his ability to request a waiver under that
section. The alien in St. Cyr was charged with being removable as a result of his having
pleaded guilty in 1996 to an aggravated felony. 533 U.S. at 293. At the time of his plea,
he was eligible for a waiver of deportation under INA § 212(c), but later that year
Congress repealed § 212(c) as part of IIRIRA. St. Cyr, 533 U.S. 314-15. IIRIRA
replaced § 212(c) with the new discretionary relief of cancellation of removal set forth in
11
Because Jurado-Delgado is independently removable for his having falsely
represented himself to be a United States citizen in 2004, the portion of our discussion
that addresses his retroactivity argument will focus on that charge of removability.
12
8 U.S.C. § 1229b, which is not available to an alien who has been convicted of an
aggravated felony. 8 U.S.C. § 1229b(a)(3); St. Cyr, 533 U.S. at 297. The alien in St. Cyr
was placed in removal proceedings in 1997, after the repeal of INA § 212(c) became
effective. St. Cyr, 533 U.S. at 293.
The question confronted by the Supreme Court in St. Cyr was whether Congress’s
repeal of § 212(c) was impermissibly retroactive as applied to aliens who pleaded guilty
to crimes that made them deportable but who otherwise would have been eligible for
§ 212(c) relief at the time of their plea. The Supreme Court held that it was, after
applying the two-step analysis set forth in Landgraf.12 The Court first determined that
12
In Landgraf, the Supreme Court stated:
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 prescribed the statute’s proper reach.
If Congress has done so, of course, there is no need to resort
to judicial default rules. 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. If the statute would
13
Congress had not unambiguously directed that its repeal of § 212(c) should be applied to
bar relief to aliens who pleaded guilty to deportable crimes prior to IIRIRA’s effective
date. St. Cyr, 533 U.S. at 320. It also concluded that the repeal of § 212(c) as applied to
aliens who would have been eligible for § 212(c) waivers at the time of their pleas would
have a retroactive effect, reasoning that those aliens almost certainly relied upon the
likelihood of receiving discretionary relief in deciding whether to forgo their right to a
trial. Id. at 321-25.
St. Cyr does not help Jurado-Delgado for at least two important reasons. First, and
most significantly, unlike the alien in St. Cyr, Jurado-Delgado committed the act for
which he is now being removed after Congress enacted the law that he alleges is
impermissibly retroactive. Thus, unlike the alien in St. Cyr, who was being removed as
the result of a conviction that occurred prior to Congress’s repeal of INA § 212(c),
Jurado-Delgado is being removed for an act that he committed in 2004, long after
§ 1229b took effect. Thus, there is no occasion to conduct a Landgraf analysis to
determine whether § 1229b is impermissibly retroactive as applied to Jurado-Delgado,
because this case does not “implicate[] a federal statute enacted after the events in suit.”
Landgraf, 511 U.S. at 280. We do not believe that a Landgraf analysis must be
conducted merely because, in concluding that Jurado-Delgado was not eligible for the
operate retroactively, our traditional presumption teaches that it does not
govern absent clear congressional intent favoring such a result.
511 U.S. at 280.
14
new discretionary relief created by 8 U.S.C. § 1229b, the BIA took into account offenses
committed by him prior to Congress’s enactment of that statute. The analysis set forth in
Landgraf, by its terms, applies only when a case “implicates a federal statue enacted after
the events in suit,” 511 U.S. at 280, and, as explained, Jurado-Delgado is being removed
as a result of conduct that occurred after the effective date of § 1229b.
Second, unlike the alien in St. Cyr, Jurado-Delgado does not argue that Congress’s
repeal of INA § 212(c) operates retrospectively by destroying some ability to obtain relief
in this case that he would have otherwise had. Nor would that argument help him here.
Even if Jurado-Delgado had been charged with being removable as a result of his
convictions for the 1991 crimes and he were then granted a § 212(c) waiver with respect
to that charge,13 the waiver would not have expunged the underlying convictions from his
criminal record. See Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 248 (3d Cir. 2005)
(“As the BIA has explained ... ‘[t]he grant of a section 212(c) relief merely waives the
finding of deportability rather than the basis of the deportability itself. Therefore, the
crimes alleged to be grounds for deportability do not disappear from the alien's record for
immigration purposes.’” (quoting In re Balderas, 20 I. & N. Dec. 389, 391 (B.I.A. 1991)).
Accordingly, Jurado-Delgado’s receipt of a § 212(c) waiver would not change the fact
13
Under St. Cyr, § 212(c) relief remains available for aliens who pleaded guilty to
deportable offenses at a time when they would have been eligible for a waiver under
§ 212(c). 533 U.S. at 326. We express no opinion as to whether Jurado-Delgado would
be entitled to a § 212(c) waiver for a charge of removability based upon his convictions
for the 1991 crimes.
15
that he is removable based on his having falsely represented himself as a United States
citizen in 2004, nor would it change the fact that he is statutorily ineligible for
cancellation of removal relief because of his commission of two crimes involving moral
turpitude in 1991. See id. (holding that even if a charge of deportability based upon an
alien’s pre-IIRIRA conviction were waived under § 212(c), the pre-IIRIRA crime can still
operate to bar cancellation of removal relief when an alien is removable because of a
post-IIRIRA crime).
Jurado-Delgado nevertheless argues that it is the application of subsection (d)(1) of
§ 1229b, i.e., the stop-time rule, that has an impermissible retroactive effect on him. He
asserts that, but for Congress’s enactment of the stop-time rule, he would have accrued
seven years of continuous residence in the United States and would be eligible for
cancellation of removal relief under § 1229b(a). Thus, he says, we should ignore
§ 1229b(d)(1) – because it takes into account crimes he committed prior to its enactment
and stops his accrual of a period of continuous residence – and hold that he is eligible for
cancellation of removal under § 1229b(a). We do not think that the statute is a menu of
choices, though. Jurado-Delgado cannot embrace the newly created relief and
simultaneously reject Congress’s classification of those entitled to relief. While he argues
that Congress’s enactment of § 1229b(d)(1) destroys his ability to obtain cancellation of
removal under § 1229b(a), he ignores that both subsections of the statute were enacted at
the same time as part of IIRIRA. In truth, he has never been eligible for cancellation of
16
removal under § 1229b(a) because § 1229b(d)(1) has always operated to limit the class of
eligible aliens to those aliens who have continuously resided in the United States for
seven years without committing a specified crime. Thus, we reject his argument that
§ 1229b(d)(1) operates retroactively to bar his ability to obtain relief under § 1229b(a).14
Our decision in this regard is at odds with the decision of the United States Court
of Appeals for the Ninth Circuit in Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir.
2006), in which the court held that a permanent resident who was deportable based upon a
post-IIRIRA conviction could obtain relief under 8 U.S.C. § 1229b(a), notwithstanding
his commission of a disqualifying offense before he had acquired seven years of
continuous residence. The court held that the stop-time rule was impermissibly
retroactive insofar as it rendered the alien ineligible for cancellation of removal as the
result of a guilty plea entered prior to the enactment of IIRIRA. Id. 1202-03. We
respectfully decline to follow the Ninth Circuit’s approach for the reasons already noted.
In particular, we disagree with the decision to effectively excise the statutory restrictions
set forth in subsection (d)(1) from the remainder of § 1229b. Subsections (a) and (d)(1)
were enacted at the same time, and we see no basis for permitting an alien to obtain relief
in the form of cancellation of removal under subsection (a) when he does not meet all of
the contemporaneously-enacted statutory requirements for that relief.
14
Of course, the applicability of the stop-time rule with respect to an alien’s eligibility
for suspension of deportation under former 8 U.S.C. § 1254 (repealed), a type of relief
that existed prior to IIRIRA, requires a different analysis. See, e.g., Briseno-Flores, 492
F.3d at 229-30.
17
B. Insufficient Notice
Finally, we address Jurado-Delgado’s claim that, because his 1991 crimes were not
alleged to be a basis for removability in either the 2001 notice to appear or in the 2005
document lodging an additional charge of removability, the BIA erred in relying on them
in denying him cancellation of removal. He makes three arguments in support of that
claim. First, he argues that his constitutional right to due process was violated as a result
of the failure of any charging document to allege that his 1991 crimes rendered him
ineligible for cancellation of removal. However, we join the several of our sister courts
of appeals that have rejected the argument that an alien has a due process right to have
listed in the notice to appear all crimes affecting the alien’s eligibility for discretionary
relief from removal. See, e.g., Matovski v. Gonzales, 492 F.3d 722, 738-39 (6th Cir.
2007) (“The petitioners enjoyed the right to know the charges of removability against
them and to have those charges listed on Notices to Appear. However, the petitioners had
no right to require the government to list every defense against their potential applications
for discretionary relief.”); Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir.
2006) (“[D]ue process does not require inclusion of charges in the [notice to appear] that
are not grounds for removal but are grounds for denial of relief from removal.”); Brown v.
Ashcroft, 360 F.3d 346, 351-52 (2d Cir. 2004) (“‘[T]here is no requirement, either
statutory or constitutional, that all possible defenses or collateral remedies be explained’
18
to the alien against whom the government is proceeding.” (quoting Aalund v. Marshall,
461 F.2d 710, 712 (5th Cir. 1972)).
Jurado-Delgado next argues that the failure of any charging document to mention
his 1991 crimes violated 8 U.S.C. § 1229(a)(1), which requires that aliens in removal
proceedings be given written notice of “[t]he acts or conduct alleged to be in violation of
law” and “[t]he charges against the alien and the statutory provisions alleged to have been
violated.” 8 U.S.C. § 1229(a)(1)(C),(D). There is no dispute, however, that Jurado-
Delgado did receive written notice of the charges of removability against him and the
facts the government relied upon to support those charges. He was expressly advised that
he was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) as a result of his two convictions in
1997 of crimes involving moral turpitude, and that he was removable under 8 U.S.C.
§ 1227(a)(3)(D) for having falsely represented himself in 2004 as a United States citizen.
Jurado-Delgado’s 1991 crimes were not relied on by the BIA as supporting a charge of
removability. Instead, the BIA relied on those crimes in arriving at its conclusion that
Jurado-Delgado was statutorily ineligible for discretionary relief from removal. We see
nothing in 8 U.S.C. § 1229(a)(1) that requires a notice to appear or any other charging
document to list all facts that may be detrimental to an alien’s application for
discretionary relief from removal.15 See Brown, 360 F.3d at 351 (rejecting the argument
15
For the same reason, we reject Jurado-Delgado’s argument that the failure of a
charging document to mention his 1991 crimes violated 8 C.F.R. § 1240.10(e), which
permits the DHS to lodge additional charges of removability and factual allegations in
writing at any time during the removal proceedings and requires the DHS to serve the
19
that 8 U.S.C. § 1229(a)(1) requires that an alien receive written notice of a conviction that
is not relied upon as supporting a charge of removability but that affects statutory
eligibility for discretionary relief).
Finally, Jurado-Delgado takes issue with the BIA’s determination that 8 U.S.C.
§ 1229b(d)(1) does not require an alien to have been charged in the notice to appear with
being inadmissible or removable for committing the particular offense that is invoked as
the basis for barring him from seeking cancellation of removal. In response, the Attorney
General asserts that the BIA’s interpretation of § 1229b(d)(1) is entitled to deference
under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984). We need not reach the question of deference on this point, however, because we
completely agree with the BIA’s interpretation of the statute. Cf. Edelman v. Lynchburg
Coll., 535 U.S. 106, 114 (2002) (“Because we so clearly agree with the [agency], there is
no occasion to defer and no point in asking what kind of deference, or how much.”). To
stop the accrual of a period of continuous residency, the only thing § 1229b(d)(1)(B)
requires is an offense that “renders the alien inadmissible ... or removable.” There is no
requirement that the offense be the stated ground of removability. Cf. Hussain v.
Mukasey, 518 F.3d 534, 537 (7th Cir. 2008) (rejecting the argument that the statutory bar
in 8 U.S.C. § 1229b(c)(4) on cancellation of removal for aliens who are removable on
grounds of terrorism requires that terrorism also be the stated ground of removal).
alien with a copy of those additional charges and allegations.
20
III. Conclusion
We have considered the remainder of Jurado-Delgado’s arguments and find them
to be without merit. Accordingly, for the foregoing reasons, we will deny the petition for
review.
SLOVITER, Circuit Judge, concurring
I join all of Judge Jordan’s opinion with the exception of Part II.A.2., which
addresses the retroactivity of the stop-time rule. The majority abjures conducting a
Landgraf analysis because it concludes that the application of the stop-time rule to
Jurado-Delgado’s case is not impermissibly retroactive, indeed not retroactive at all. See
Landgraf v. USI Film Products, 511 U.S. 244 (1994). I disagree with the majority’s
analysis, but not with the final result.
The majority finds that this case does not “implicate[] a federal statute enacted
after the events in suit,” id. at 280, (a prerequisite for application of a Landgraf analysis)
because “Jurado-Delgado is being removed for an act that he committed in 2004, long
after § 1229b took effect.” Maj. Op. at 14. The majority is correct that Jurado-Delgado’s
post-IIRIRA crimes render him removable (as do his earlier crimes), but it is only his pre-
IIRIRA offenses that render him ineligible for cancellation of removal under the stop-
time rule. If the stop-time rule did not apply retroactively to crimes predating IIRIRA,
21
Jurado-Delgado would be statutorily eligible for cancellation of removal because his 1991
offenses would not have terminated his period of continuous presence.
The BIA based its rejection of Jurado-Delgado’s request for cancellation of
removal by applying the stop-time rule to the 1991 crimes. In re Jurado-Delgado, 241 I.
& N. Dec. 29, 35 (B.I.A. 2006). Jurado-Delgado argues that the BIA erred in applying
the stop-time retroactively, and that a correct application of Landgraf precludes such
retroactivity. The government disagrees, and asks us to deny the Petition for Review.
The majority attempts to explain its failure to apply a Landgraf analysis where it
states that the Landgraf analysis applies only when a case implicates a federal statute
enacted after the events in suit. See Maj. Op. at 15. The stop-time rule fits that scenario
in this case. It is contained in 8 U.S.C. § 1229b(d)(1) which was enacted in 1996 and
became effective in 1997. The stop-time rule would interrupt Jurado-Delgado’s accrual
of seven years continuous presence when he committed the 1991 offenses if it applies
retroactively to events before its enactment. Therefore, I believe we must deal with
Landgraf, the decision of the Supreme Court that instructs us when statutes are to be
applied retroactively.1
1
Other courts that have addressed this question in depth have applied a Landgraf
analysis. See, e.g., Martinez v. INS, 523 F.3d 365, 369-77 (2d Cir. 2008); Peralta v.
Gonzales, 441 F.3d 23, 30-31 (1st Cir. 2006); Sinotes-Cruz v. Gonzales, 468 F.3d 1190,
1198-1203 (9th Cir. 2006); Pinho v. INS, 249 F.3d 183, 187-190 (3d Cir. 2001); Appiah
v. INS, 202 F.3d 704, 708-09 (4th Cir. 2000); Henry v. Ashcroft, 175 F. Supp. 2d 288,
692-96 (S.D.N.Y. 2001).
22
In Landgraf, the Supreme Court established a two-part analysis for determining if
a statute has an impermissibly retroactive effect: First, we must determine if Congress has
given a clear indication that the statute is to be applied retroactively. 511 U.S. at 280. “If
Congress has done so, of course, there is no need to resort to judicial default rules.” Id.
At the second step, we must consider whether retroactive application of the statute
“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.
Under step one of Landgraf, nothing in the stop-time rule clearly indicates that
Congress unambiguously expressed that the rule be applied retroactively. Nothing in the
statute indicates the appropriate temporal scope of the stop-time rule with respect to an
alien in Jurado-Delgado’s position. In contrast, the transitional rule expressly makes the
stop-time rule applicable to pending cases involving suspension of deportation. IIRIRA §
309(c)(5), Pub. L. No. 104-208, 110 Stat. 3009-627 (1996).2 However, that rule offers no
guidance here because Jurado-Delgado would not have been eligible for suspension of
deportation.3 The transitional rule addressed only applications for suspension of
2
This court has held that the application of the stop-time rule to transitional suspension
of deportation cases is not impermissibly retroactive because Congress clearly intended
that it be applied retroactively and doing so does not impair any vested rights. See Pinho
v. INS, 249 F.3d 183, 188-89 (3d Cir. 2001). Many of our sister circuits have come to the
same conclusion. See e.g., Tablie v. Gonzales, 471 F.3d 60, 63-64 (2d Cir. 2006); Peralta
v. Gonzales, 441 F.3d 23, 30-31 (1st Cir. 1006).
3
Jurado-Delgado does not argue that he would have been eligible for suspension of
deportation; he argues that, under pre-IIRIRA law, he would have been eligible for §
212(c) relief (Appellant’s Br. 38-39, Reply Br. 11).
23
deportation and was silent as to pending applications for § 212(c) waivers. Because
Congress’ intent to make the stop-time rule retroactive is ambiguous with respect to an
alien in Jurado-Delgado’s situation, we need to proceed to step two of Landgraf. See INS
v. St. Cyr, 533 U.S. 289, 320 (2001).
Jurado-Delgado’s claim fails under step two of Landgraf because he cannot show
that the retroactive application of the stop-time rule to his 1991 crimes “would impair
rights [he] possessed when he acted, increase [his] liability for past conduct, or impose
new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280.
“[W]hether a particular application is retroactive will depen[d] upon what one
considers to be the determinative event by which retroactivity or prospectivity is to be
calculated.” Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 100 (1992)
(Thomas, J., concurring) (internal quotation marks, citation, and emphasis omitted).
Here, the relevant conduct was the commission of the crimes, as opposed to the
subsequent guilty pleas. See Martinez v. INS, 523 F.3d 365, 373-76 (2d Cir. 2008)
(holding that the commission of the crime is the determinative event for a Landgraf
analysis of the stop-time rule).
As the majority notes, Jurado-Delgado committed the offenses underlying the
1991/92 convictions on March 27, 1991, and December 19, 1991. Jurado-Delgado
arrived as a lawful permanent resident on September 15, 1985. Because he had not
established seven years of continuous presence at the time of his commission of the
24
offenses leading to the 1991/92 convictions, his right to § 212(c) relief had not vested.
Accordingly, the Landgraf analysis does not protect Jurado-Delgado from retroactive
application of the stop-time rule because the 1996 enactment of the stop-time rule did not
impair any rights that he possessed at the time of his offenses.
25