Munoz-Sigala v. Moore

United States Court of Appeals
Fifth Circuit
In the
FILED
United States Court of Appeals September 7, 2006
for the Fifth Circuit Charles R. Fulbruge III
Clerk
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m 05-50102
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JOSE GUADALUPE MUNOZ-SIGALA,
Petitioner-Appellant,
VERSUS
MARC J. MOORE,
AS FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL
FOR THE BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT;
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
DEPARTMENT OF HOMELAND SECURITY,
AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
MICHAEL CHERTOFF,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY;
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondents-Appellees.
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m 05-60522
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JOSE GUADALUPE MUNOZ-SIGALA,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
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Petitions for Review of Orders of
the Board of Immigration Appeals
m A37 437 097
_________________________
Before SMITH, WIENER, and OWEN, petition for writ of habeas corpus. The appeal
Circuit Judges. has been converted into a petition for review.
For the reasons stated, we deny both petitions
JERRY E. SMITH, Circuit Judge:* for review.
In these consolidated cases, Jose Munoz- I.
Sigala petitions for review of a decision of the Munoz-Sigala, a citizen of Mexico, became
Board of Immigration Appeals (“BIA”) affirm- a lawful permanent resident of the United
ing a removal order by an immigration judge States in 1982. In 1992 he was indicted for
(“IJ”) and the subsequent denial by the BIA of aggravated delivery of a controlled substance,
a motion to reopen his case, and he appeals an namely over 400 grams of cocaine; on April
order of the district court dismissing his 29, 1996, he pleaded guilty and was given a
suspended sentence. The former Immigration
and Naturalization Service (“INS”) placed him
*
Pursuant to 5TH CIR. R. 47.5, the court has in removal proceedings in 1999, charging that
determined that this opinion should not be pub- he was removable as an alien convicted of an
lished and is not precedent except under the limited aggravated felony and as an alien having an il-
circumstances set forth in 5TH CIR. R. 47.5.4. legal drug conviction. The IJ sustained the
2
charges and ordered him removed to Mexico. BIA held that the motion to reopen was un-
timely. Further, it held that AEDPA took ef-
Munoz-Sigala appealed to the BIA, which fect on April 24, 1996, five days before Mun-
affirmed. A subsequent petition for writ of ha- oz-Sigala pleaded guilty on April 29, 1996.
beas corpus, based on 28 U.S.C. § 2241, was Thus, Munoz-Sigala’s reliance on St. Cyr was
denied by the district court in 2000 for lack of misplaced because his expectations at the time
jurisdiction. The court based its decision on of the guilty plea were not upset by a change
Max-George v. Reno, 205 F.3d 194 (5th Cir. in the law that had occurred before he entered
2000), in which this court held that the Illegal his plea.
Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) had After the BIA denied his motion to reopen
deprived the district courts of jurisdiction to Munoz filed a third § 2241 habeas petition on
issue writs of habeas corpus under § 2241 to May 6, 2005. The district court transferred
certain criminal aliens. The Supreme Court, the case to this court as required by the REAL
however, effectivelyoverruled Max-George in ID Act, Pub. L. No. 109-13, 119 Stat. 231INS v. St. Cyr, 533 U.S. 289, 314 (2001), (May 11, 2005). We granted a motion to
holding, inter alia, that such jurisdiction had consolidate these two matters. Munoz-Sigala
not been repealed by IIRIRA. challenges the BIA’s decision affirming the
IJ’s removal order and the BIA’s denial of the
In light of St. Cyr, Munoz-Sigala filed an- motion to reopen.
other § 2241 habeas petition, asserting that he
had been unlawfully denied the ability to seek II.
a discretionary waiver of his removal order un- Initially we deal with the effect of the
der INA § 212(c). Although acknowledging REAL-ID Act on Munoz-Sigala’s appeal of
that the Antiterrorism and Effective Death the district court’s dismissal of his habeas pe-
Penalty Act (“AEDPA”) had denied § 212(c) tition for lack of jurisdiction because he was
relief to aliens convicted of aggravated felon- not “in custody.”2 Section 106 of the Act di-
ies, he argued that the effective date of vested district courts of jurisdiction over chal-
AEDPA was uncertain at the time of his con- lenges to removal orders in § 2241 proceed-
viction and that, under St. Cyr, § 212(c) relief ings and designated the courts of appeals as
remained available to aliens, such as him, who the sole fora for such challenges via petitions
were eligible for relief before the enactment of for review. Pub. L. No. 109-13, 119 Stat.
AEDPA and IIRIRA. The district court dis- 231, 310; Rosales v. Bureau of Immigration &
missed the petition for lack of jurisdiction Customs Enforcement, 426 F.3d 733, 735-36
without reaching the merits, finding that the (5th Cir. 2005), cert. denied, 126 S. Ct. 1055“in custody” requirement of § 2241 had not (2006). This section applies “to cases in which
been met. Munoz-Sigala appealed that deci- the final administrative order of removal,
sion.
Munoz-Sigala then filed a motion with the 2
The REAL-ID Act is one part of the Emer-
BIA seeking to reopen his case, making argu- gency Supplemental Appropriations Act for De-
ments similar to those he had raised in his sec- fense, the Global War on Terror, and Tsunami Re-
ond § 2241 petition in the district court. The lief, 2005, Pub. L. No. 109-13, 119 Stat. 231(May 11, 2005).
3
deportation, or exclusion was issued before, notwithstanding those convictions, would have
on, or after the date of enactment of this been eligible for § 212(c) relief at the time of
provision.” Pub. L. No. 109-13, 119 Stat. their plea under the law then in effect.” Id. at
231, 311, § 106(b). Further, habeas petitions, 326.
such as Munoz-Sigala’s, that are challenging
removal orders on appeal as of May 11, 2005, The BIA concluded that St. Cyr is inappli-
are converted into petitions for review. Rosal- cable to Munoz-Sigala because he pleaded
es, 426 F.3d at 736. Thus, Munoz-Sigala’s guilty five days after the passage of AEDPA
habeas petition challenging his removal is con- and thus was ineligible for § 212(c) relief at
verted into a petition for review of the BIA’s the time of his plea. In Alvarez-Hernandez v.
decision to affirm his removal order, and the Acosta, 401 F.3d 327, 334 (5th Cir. 2005), we
district court’s conclusion that it lacked habeas held that where there is a plea agreement, the
jurisdiction is moot and thus vacated. St. Cyr analysis is triggered by the date of the
guilty plea, not the date judgment is entered.
We review the BIA’s rulings of law de The defendant in Alvarez-Hernandez pleaded
novo, but we defer to the BIA’s interpretation guilty approximately two years before the pas-
of immigration regulations if the interpretation sage of AEDPA and IIRIRA, but the final
is reasonable. Lopez-Gomez v. Ashcroft, 263 judgment was not entered until after both laws
F.3d 442, 444 (5th Cir. 2001). A denial by the had become effective. We held that because
BIA of a motion to reopen is reviewed for § 212(c) was in effect at the time of the plea,
abuse of discretion. Panjawani v. Gonzales, the defendant had acquired an “important reli-
401 F.3d 626, 632 (5th Cir. 2005). The “tenor ance interest entitled to protection” and that
of the Attorney General’s regulations . . . this interest came into being on “the date of
plainly disfavor[s] motions to reopen.” INS v. the plea.” Id. at 334. Thus, if the plea was
Abudu, 485 U.S. 94, 110 (1988). made before the effective date of AEDPA, the
retroactivity analysis of St. Cyr was triggered.
Under the former INA § 212(c), 8 U.S.C.
§ 1182(c), an alien was permitted to seek a Munoz-Sigala’s guiltyplea and judgment of
discretionary waiver of deportation if he had conviction were entered on the same day, Ap-
been a lawful permanent resident with an un- ril 29, 1996. Because this was five days after
relinquished domicile of seven years. Ashby v. AEDPA became effective, under Alvarez-
INS, 961 F.2d 555, 557 (5th Cir. 1992). In Hernandez the retroactivity concerns of St.
1996, in § 440(d) of AEDPA, Congress pre- Cyr do not apply.
cluded such relief for aliens convicted of, inter
alia, an aggravated felony or drug offense. Munoz further contends that the determina-
Pub. L. No. 104-132, 110 Stat. 1214, 1277; tive date for the St. Cyr analysis should be the
St. Cyr, 533 U.S. at 297. Later that year Con- date the plea agreement was reached, not the
gress enacted IIRIRA, which repealed date on which he actually pleaded guilty. He
§ 212(c). St. Cyr, 533 U.S. at 297. In St. Cyr, does not state on what date his plea agreement
however, the Court held that the repeal of was reached, but only that because of the four
§ 212(c) cannot be applied retroactively to de- years that elapsed between the commission of
prive relief to aliens “whose convictions were his crime and his guilty plea it is likely that the
obtained through plea agreements and who, plea agreement was reached before April 24,
4
1996, the date AEDPA became effective. effect, so he relied to his detriment on the
availability of § 212(c) relief.
We need not decide, in this case, whether
the St. Cyr analysis is triggered by the date the This argument is unavailing. Soriano dealt
plea agreement was reached or the date the with an alien who had applied for § 212(c) re-
agreement was accepted by the court. Even if lief before the passage of § 440(d) of AEDPA.
we were to hold that the determinative date is The BIA held that AEDPA became effective
the one on which the defendant and prosecutor on the day it was passed, April 24, 1996, but
reached a plea agreement, Munoz-Sigala the bar did not retroactively apply to proceed-
would have the burden of establishing that ings that were already pending. Soriano, 21
date. I.&N. Dec. at 519-21. Because Munoz-Sigala
did not seek § 212(c) relief before AEDPA
“The alien has the burden of establishing el- was enacted, the exception does not apply to
igibility for relief, including the date on which him.
the alien and the prosecution agreed on the
plea of guilt or nolo contendere.” 8 C.F.R. Further, the BIA did not find that the effec-
§ 1003.44(b). The explanation of this rule ar- tive date of AEDPA was ambiguous, but rath-
ticulates the rationale behind it: “The nature er that the language of AEDPA, in accord with
of the comment . . . underscores the need to general principles of statutoryconstruction, in-
make clear that the alien seeking section dicates that the law became effective on the
212(c) relief has the burden of establishing the date of its passage. Id. On that date AEDPA
plea agreement date, and the alien is in the best precluded § 212(c) relief for aliens with aggra-
position to do so because the alien was present vated felony convictions, and thus Munoz-
(not the DHS or the immigration judge) and is Sigala’s contention that he detrimentally relied
most likelyto possess the documents reflecting on the availability of such relief after that date
the plea agreement.” Section 212(c) Relief for is unpersuasive.
Aliens with Certain Criminal Convictions
Before April 1, 1997, 69 Fed. Reg. 57,826, For the reasons explained, the petitions for
57,830 (Sept. 28, 2004). review are DENIED.
Munoz-Sigala claims that, even given that
the date of his guilty plea was five days after
the effective date of AEDPA, he was eligible
for § 212(c) relief because at the time of his
plea the effective date of § 440(d) of AEDPA
was uncertain. He claims that the BIA clari-
fied the effective date in Matter of Soriano, 21
I.&N. Dec. 516 (BIA June 27, 1996), and that
before that decision it was not known for sure
when AEDPA had become effective. Munoz-
Sigala asserts that at the time of his plea,
which was entered before Soriano was decid-
ed, he was uncertain whether AEDPA was in
5