Paul Taylor v. Eric Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1519
PAUL IGNATIUS TAYLOR,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent,
----------------------------------------
IMMIGRANT DEFENSE PROJECT; NATIONAL IMMIGRATION PROJECT OF
THE NATIONAL LAWYERS GUILD,
Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 20, 2012 Decided: January 7, 2013
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Dean E. Wanderer, DEAN E. WANDERER & ASSOCIATES, Fairfax,
Virginia, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, Daniel E. Goldman, Senior Litigation Counsel,
Jem C. Sponzo, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Trina
Realmuto, Sejal Zota, NATIONAL IMMIGRATION PROJECT OF THE
NATIONAL LAWYERS GUILD, Boston, Massachusetts.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Paul Ignatius Taylor, a native and citizen of Jamaica,
petitions for review of the Board of Immigration Appeals’
(“Board”) order dismissing his appeal of the immigration judge’s
(“IJ”) order, which granted the Attorney General’s motion to
pretermit Taylor’s application for cancellation of removal, on
the basis that Taylor was statutorily ineligible for that relief
by operation of the “stop-time” rule embodied in 8 U.S.C.
§ 1229b(d)(1)(B) (2006). Because we conclude that the Board did
not err in ruling that the permanent stop-time rule is
retroactively applicable to Taylor’s 1980s-era convictions, we
deny the petition for review.
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court
generally lacks jurisdiction to review the final order of
removal of an alien convicted of certain enumerated crimes,
including controlled substance offenses referenced in 8 U.S.C.
§ 1227(a)(2)(B) (2006). Taylor does not dispute that he
committed a controlled substance offense, rendering him
deportable under § 1227(a)(2)(B). Nevertheless, this court
retains jurisdiction to review “constitutional claims or
questions of law” raised in a petition for review of an
otherwise unreviewable deportation order. 8 U.S.C.
§ 1252(a)(2)(D) (2006); see Turkson v. Holder, 667 F.3d 523,
526-27 (4th Cir. 2012). We review the Board’s legal
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determinations de novo, generally giving deference to its
interpretations of its own governing regulations. Turkson, 667
F.3d at 527. Where the statutory text is unambiguous, however,
there is no unclarity over which the agency may assert its
interpretive prerogative, and deference to its interpretation is
therefore unwarranted. Salem v. Holder, 647 F.3d 111, 115 (4th
Cir. 2011), cert. denied, 132 S. Ct. 1000 (2012); see
also INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001).
Taylor primarily challenges the Board’s conclusion
that the permanent stop-time rule retroactively applies to him.
The relevant facts are well-known to the parties. In short,
fewer than six years after he entered the United States as a
lawful permanent resident, Taylor pled guilty in 1980 and in
1981 to two controlled substance offenses. Although at least
his 1980 conviction rendered him deportable, Taylor remained in
the United States. In 2007, he committed two more deportable
controlled substance offenses. Deportation proceedings were
commenced, and Taylor conceded removability. Although Taylor
applied for cancellation of removal under 8 U.S.C. § 1229b(a)
(2006), the IJ granted the Attorney General’s motion to
pretermit the application, citing the stop-time rule. According
to the IJ, Taylor’s period of continuous residence stopped with
the commission of his 1980 offense, rendering him bereft of the
seven years of continuous residence required under § 1229b(a)(2)
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for eligibility for cancellation of removal. On appeal, the
Board agreed with the IJ’s assessments. Taylor then filed this
petition for review.
Taylor concedes that if the stop-time rule applies to
his case, he does not possess the requisite seven years of
continuous residence. So he attempts to evade the
straightforward application of the stop-time rule by observing
that it came into effect only with the introduction of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009-546 — a decade and a
half after he had pled guilty to the offenses that now trigger
the stop-time rule. According to Taylor, the stop-time rule may
not be applied retroactively to give his previous convictions an
effect that he did not contemplate at the time of his pleas. As
the Supreme Court has explained, there is a “presumption”
against retroactive legislation: “[C]ourts read laws as
prospective in application unless Congress has unambiguously
instructed retroactivity.” Vartelas v. Holder, 132 S. Ct. 1479,
1486 (2012).
The determination whether a statute applies
retroactively is an exercise in deciphering Congressional
intent. Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).
It involves two steps. First, the court must determine whether
“‘Congress has expressly prescribed the statute’s proper
5
reach.’” Appiah v. INS, 202 F.3d 704, 708 (4th Cir. 2000)
(quoting Landgraf, 511 U.S. at 280). If Congress has done so,
“this is the end of the analysis and there is no need ‘to resort
to judicial default rules.’” Id. (quoting Landgraf, 511 U.S. at
280). Where, by contrast, the statute does not contain explicit
language reflecting Congressional intent, the court must
determine whether the statute would have impermissible
retroactive effect; that is, if 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.” St.
Cyr, 533 U.S. at 320, 321 (internal quotation marks omitted).
While “likelihood of reliance on prior law strengthens
the case for reading a newly enacted law prospectively,” the
presumption against retroactive application “does not require a
showing of detrimental reliance.” Vartelas, 132 S. Ct. at 1491.
Instead, “[t]he essential inquiry . . . is ‘whether the new
provision attaches new legal consequences to events completed
before its enactment.’” Id. (quoting Landgraf, 511 U.S. at
270). “If the statute would operate retroactively, our
traditional presumption teaches that it does not govern absent
clear congressional intent favoring such a result.” Landgraf,
511 U.S. at 280.
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In our view, even if the relevant statutory language
is silent as to Congressional intent, * application of the
permanent stop-time rule to Taylor’s circumstances would not
have an “impermissible retroactive effect.” St. Cyr, 533 U.S.
at 320. Despite the fact that Taylor claims that he pled guilty
to his 1980s-era offenses in reliance on the availability of a
waiver under former Immigration and Nationality Act § 212(c), 8
U.S.C. § 1182(c) (1976), it is apparent that he cannot have done
so. Cf. St. Cyr, 533 U.S. at 321-26. Simply put, he was not
eligible for such relief at the time of his guilty pleas. There
is no dispute that, at the time of his conviction, his 1980
controlled substance offense was a deportable offense. See 8
U.S.C. § 1251(a)(11) (1976). And given that he committed his
offense fewer than six years after arriving in the United
States, Taylor was not eligible at the time of his conviction to
apply for a § 212(c) waiver, because such a waiver required
permanent residents to possess at least seven consecutive years
of “lawful unrelinquished domicile.” 8 U.S.C. § 1182(c)
*
We take no position as to whether our reasoning in Appiah,
202 F.3d at 708-09, which ruled on the retroactivity of the
transitional stop-time rule, controls the result here. See
Martinez v. INS, 523 F.3d 365, 371 (2d Cir. 2008) (describing
the difference between the permanent and transitional stop-time
rules); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1199-200 (9th
Cir. 2006); Heaven v. Gonzales, 473 F.3d 167, 174 (5th Cir.
2006).
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(1976); see also St. Cyr, 533 U.S. at 294-96 (discussing the
relief available under § 212(c)). Because Taylor was not
eligible for discretionary relief under § 212(c) at the time of
his 1980 offense, it cannot be the case that retroactive
application of the permanent stop-time rule imposes any new
legal disability on the fact of Taylor’s
conviction. See Martinez, 523 F.3d at 374. Accordingly, the
permanent stop-time rule does not have an impermissible
retroactive effect when applied to Taylor. See Vartelas, 132 S.
Ct. at 1490-92; St. Cyr, 533 U.S. at 321-26.
Finally, to the extent that Taylor asserts that his
brief exit from and reentry into the United States in 1984
restarted his ability to accrue the requisite period of
continuous residency, we decline his invitation to overturn the
Board’s rejection of his argument. See Nelson v. Attorney Gen.,
685 F.3d 318, 323-25 (3d Cir. 2012) (upholding Board’s
conclusion that reentry did not “restart the clock”).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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