Keleva v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOZO KELAVA,  No. 03-73689
Petitioner, Agency No.
v.
 A18-715-040
ALBERTO R. GONZALES,* Attorney ORDER AND
General, AMENDED
Respondent.
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 9, 2005—San Francisco, California
Opinion Filed June 7, 2005
Amended January 12, 2006
Before: Andrew J. Kleinfeld, Michael Daly Hawkins, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Hawkins
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
545
548 KELAVA v. GONZALES
COUNSEL
Michael Aaron Harwin, Tucson, Arizona, for the petitioner.
Andrew C. MacLachlan (argued) and Russell J.E. Verby
(briefed), Office of Immigration Litigation, Civil Division,
U.S. Department of Justice, Washington, D.C., for the respon-
dent.
ORDER
The Opinion filed on June 7, 2005, and appearing at 410
F.3d 625 (9th Cir. 2005), is hereby amended, and the
amended Opinion will be filed concurrently with this Order.
With the Opinion as amended, the panel has voted to deny
Petitioner’s Petition for Rehearing and Petition for Rehearing
En Banc.
The full court has been advised of the Petition for Rehear-
ing En Banc and no Judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The Petition for Rehearing and the Petition for Rehearing
En Banc are DENIED.
No further petitions for rehearing or for rehearing en banc
will be entertained by this court.
KELAVA v. GONZALES 549
OPINION
HAWKINS, Circuit Judge:
Bozo Kelava, a Croatian national, seeks review of a deci-
sion by the Board of Immigration Appeals (“BIA”). The BIA
concluded Kelava was ineligible for a discretionary waiver of
inadmissibility or cancellation of removal for having engaged
in terrorist activity. In an issue of first impression, Kelava
argues it is impermissibly retroactive to deny him eligibility
for previously available discretionary relief, relying on the
Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289
(2001). We deny his petition.
FACTS AND PROCEDURAL HISTORY
Kelava, an anti-communist dissident, came to the United
States from the Croatian region of the former Yugoslavia as
a refugee in 1969. He became a legal permanent resident in
1972.
In the late 1970’s, the Federal Republic of Germany (“West
Germany”) began deporting and extraditing Croatian dissi-
dents to Yugoslavia where they were allegedly being tortured
and executed. In April 1978, Kelava and another man entered
the West German Consulate in Chicago, armed with hand-
guns, ropes and a phony bomb. United States v. Kelava, 610
F.2d 479, 480 (7th Cir. 1979). They seized several employees
(including a Consular Officer), demanding that West Ger-
many refuse to extradite Stepan Bilandzic, a prominent Cro-
atian dissident, to Yugoslavia. After being permitted to speak
with Bilandzic, Kelava and his cohort released the hostages
unharmed. Id.
Kelava and his companion were initially indicted and con-
victed in federal court of conspiracy and kidnapping of for-
eign officials, but the district court judge later determined that
he had erred in instructing the jury on a lesser included
550 KELAVA v. GONZALES
offense and ordered a new trial. The government then
obtained a new indictment charging the defendants with
armed imprisonment, based on the same facts. On appeal, the
Seventh Circuit determined that the defendants could be
retried, but only for simple (unarmed) imprisonment, because
this was a lesser included offense of the original kidnapping
indictment. Id.
In January 1980, Kelava pled guilty to one charge of
unarmed imprisonment of a foreign national, and was sen-
tenced to two and a half years in prison. Nearly 20 years later
— shortly after Kelava applied for naturalization a third time
— the INS1 commenced removal proceedings against Kelava,
alleging he was removable for having been convicted of an
aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
In June 2000, the INS filed an additional charge, alleging
Kelava was removable for having engaged in terrorist activity
under 8 U.S.C. § 1227(a)(4)(B).2
The immigration judge (“IJ”) sustained both allegations
and determined that, as a result, Kelava was precluded from
seeking a waiver of inadmissibility under former § 212(c) of
the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(c), commonly referred to as a “§ 212(c) waiver.”3 On
1
The INS was abolished effective March 1, 2003, and its functions
transferred to the newly formed Department of Homeland Security. See 6
U.S.C. § 542. As the agency was known as the INS at all times pertinent
to this appeal, we refer to it as such in this opinion.
2
“Terrorist activity” is defined as “[t]he seizing or detaining, and threat-
ening to kill, injure, or continue to detain, another individual in order to
compel a third person . . . to do or abstain from doing any act as an explicit
or implicit condition for the release of the individual seized or detained.”
8 U.S.C. § 1182(a)(3)(B)(iii)(II).
3
Section 212(c) was repealed by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) § 304(b), and was
replaced with a new form of discretionary relief called cancellation of
removal, codified at 8 U.S.C. § 1229b. See Armendariz-Montoya v.
Sonchik, 291 F.3d 1116, 1118 & n.1 (9th Cir. 2002) (describing history).
Kelava is ineligible for relief under this new provision because he is
deportable for having engaged in terrorist activity. 8 U.S.C. § 1229b(c)(4).
KELAVA v. GONZALES 551
appeal, the BIA failed to address the IJ’s determination that
Kelava had been convicted of an aggravated felony, and
instead affirmed the removal under the terrorist activity
charge. The BIA also rejected Kelava’s argument that he
could nonetheless seek § 212(c) relief. Kelava timely peti-
tioned this court for review.
DISCUSSION
I. Jurisdiction
We begin by noting that, although the IJ found Kelava
removable for being convicted of an aggravated felony, we
are not deprived of jurisdiction to hear his appeal under 8
U.S.C. § 1252(a)(2)(C), because the BIA chose not to address
the aggravated felony conviction in its decision, basing its
decision solely on the terrorist activity charge.
We addressed a similar situation in Toro-Romero v. Ash-
croft, 382 F.3d 930 (9th Cir. 2004). There, the IJ found Toro-
Romero removable for having been convicted of a crime
involving moral turpitude and for falsely representing himself
as a United States citizen. While § 1252(a)(2)(C) would have
prohibited this court’s jurisdiction over the moral turpitude
removal, the BIA affirmed Toro-Romero’s removal only on
the false representation ground, expressly declining to decide
any other issues raised by Toro-Romero on appeal. Id. at 932-
33. We explained that our review is limited to the BIA’s deci-
sion, and the sole ground for the final order of removal was
therefore Toro-Romero’s false representation. Id. at 934-35.
Thus, we concluded we did have jurisdiction over the petition
for review. Id. at 935.
[1] Likewise, in this case, although the IJ found Kelava
removable on both reviewable and nonreviewable grounds,
the BIA affirmed only the terrorist activity charge, expressly
declining to reach the other issues presented. Even if the BIA
could have found Kelava removable as an aggravated felon,
552 KELAVA v. GONZALES
it did not. Accordingly, we have jurisdiction over Kelava’s
petition, at least with respect to the continued availability of
§ 212(c) relief for those who engaged in a terrorist activity
prior to the elimination of such relief.4
II. Availability of § 212(c) relief
The BIA agreed with the IJ that Kelava was removable
because he had engaged in terrorist activity following his
admission to the United States. Kelava does not contest his
removability, but contends that the BIA erred by holding that,
as a result, he is ineligible for a § 212(c) waiver.5 He relies by
analogy on INS v. St. Cyr, 533 U.S. 289 (2001).
[2] In St. Cyr, the Supreme Court addressed the retroactive
effect of IIRIRA § 304(b), which repealed INA § 212(c), on
aliens who were otherwise eligible for such relief but had pled
guilty to an aggravated felony prior to IIRIRA’s enactment.
The Court first considered whether Congress clearly directed
the law to be applied retrospectively, concluding that it had
not. 533 U.S. at 316-20.
[3] The Court then determined whether the application of
the statute would result in a retroactive effect. Id. at 320. The
Court noted that a statute has retroactive effect when it “takes
away or impairs vested rights acquired under existing laws, or
4
In his opening brief, Kelava also asserts that he remains eligible for
§ 212(c) relief even though convicted of an aggravated felony. Because
the BIA did not affirm the aggravated felony ground for removal, this
argument is not properly before us in this appeal. For the same reason, we
deny Kelava’s Motion for Leave to File Supplemental Brief.
5
At least, Kelava did not contest his removability on this ground before
the BIA or in his briefs to this court. At oral argument, Kelava appeared
to shift his argument and contest the retroactive application of the “terror-
ist activity” definition. Because he failed to exhaust this issue before the
BIA, we lack jurisdiction to consider this argument, and express no opin-
ion on the merits of his argument. See Zara v. Ashcroft, 383 F.3d 927, 930
(9th Cir. 2004).
KELAVA v. GONZALES 553
creates a new obligation, imposes a new duty, or attaches a
new disability, in respect to transactions or considerations
already past.” Id. at 321 (internal quotation marks omitted).
The Court went on to conclude that the elimination of
§ 212(c) relief for those who entered into plea agreements
prior to the enactment of IIRIRA attached such a new disabil-
ity to considerations already past. Id. at 321.
[4] The Court explained that “[t]here can be little doubt
that, as a general matter, alien defendants considering whether
to enter into a plea agreement are acutely aware of the immi-
gration consequences of their convictions.” Id. at 322. The
Court noted that § 212(c) waivers were granted rather fre-
quently leading up to IIRIRA, and that preserving eligibility
for such relief was “one of the principal benefits sought by
defendants deciding whether to accept a plea offer or instead
to proceed to trial.” Id. at 323. The Court thus concluded that
§ 304(b) was not retroactive, and that therefore § 212(c) relief
remained available to aliens whose convictions were obtained
through plea agreements and who would have otherwise been
eligible for § 212(c) relief at the time of their plea. Id. at 326.
[5] Relying on St. Cyr, Kelava argues that because he pled
guilty in 1980, IIRIRA § 304(b) should not preclude him from
seeking relief under § 212(c) either.6 What Kelava fails to rec-
ognize is that his removability does not hinge on a “convic-
tion.” To prove removability, the government need only
establish that Kelava “engaged in” a terrorist activity “at any
time after admission”; there is no requirement that he be “con-
victed of” engaging in such actions. 8 U.S.C. § 1227(a)(4)(B).
6
Actually, IIRIRA was not the first time Congress eliminated § 212(c)
relief for those who had engaged in “terrorist activities” — this initially
occurred in 1990 with the passage of the Immigration Act of 1990
(“IMMACT”), pursuant to § 601(d) of that Act. Thus, Kelava also argues
that § 601(d) of IMMACT is not retroactive. If either Act can apply to
him, Kelava is ineligible for § 212(c) relief. Because we conclude there is
no problem in applying IIRIRA § 304(b) to Kelava, we need not consider
the retroactivity of IMMACT.
554 KELAVA v. GONZALES
In St. Cyr, on the other hand, the guilty plea supplied the
conviction necessary for removal. The Court thus focused on
the considerations present when the alien decided to plea
instead of going to trial, noting that competent defense coun-
sel would have advised the alien of the immigration conse-
quences of a plea. 533 U.S. at 322-23 & n.50. The Court
seemed concerned that the alien had detrimentally relied on
the availability of § 212(c) relief in entering the plea, giving
rise to “settled expectations” that would be disrupted by the
retroactive application of IIRIRA § 304(b). Id. at 323-24.
[6] In Kelava’s case, however, there is no independent sig-
nificance to his plea — he is undisputedly removable based
on his actions in 1978, regardless of his later decision to plead
guilty. This does not end the inquiry, but shifts the focus from
the guilty plea to the actual commission of the act. In this cir-
cuit, that distinction is significant. We have cabined St. Cyr
to the plea context, because of the alien’s reliance on existing
law in that situation.
[7] After St. Cyr, we reaffirmed our prior holding that there
was no retroactive effect in applying § 440(d) of the Antiter-
rorism and Effective Death Penalty Act of 1996 (“AEDPA”)
— which negated § 212(c) relief for aliens who committed a
qualifying controlled substance offense or an aggravated fel-
ony — to aliens who elected a jury trial instead of pleading
guilty, because they “cannot plausibly claim that they would
have acted any differently if they had known” about the elimi-
nation of § 212(c) relief, even though the criminal act and
conviction occurred before the statute’s amendment.
Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th
Cir. 2002); accord Thom v. Ashcroft, 369 F.3d 158 (2d Cir.
2004), cert. denied, 126 S. Ct. 40 (2005). In Armendariz-
Montoya, we approvingly quoted the Seventh Circuit, which
pointed out the absurdity of arguing that one would not have
committed a crime in the first place, or might have resisted
conviction more vigorously, if he had known he could not ask
for a § 212(c) waiver. 291 F.3d at 1121 (quoting LaGuerre v.
KELAVA v. GONZALES 555
Reno, 164 F.3d 1035, 1041 (7th Cir. 1998)); see also Khan v.
Ashcroft, 352 F.3d 521, 523 (2d Cir. 2003) (noting that “it
cannot reasonably be argued that aliens committed crimes in
reliance on such a possibility [of § 212(c) relief]” (internal
quotation marks omitted)).7 It is just that sort of argument that
Kelava would have to make: because there is no special immi-
gration significance to his guilty plea, in order to demonstrate
reliance or any sort of “settled expectations” on the existing
immigration laws, he would have to assert that he would not
have committed the terrorist activity in 1978 if he had known
that he might become ineligible for discretionary relief from
removal.
In his petition for rehearing, Kelava suggests that we are
free to disregard Armendariz-Montoya because it has been
effectively overruled by the Supreme Court’s recent decision
in Clark v. Martinez, 125 S. Ct. 716 (2005). We disagree.
Clark is a case of simple statutory construction. Using the
doctrine of constitutional avoidance, the Supreme Court had
previously construed 8 U.S.C. § 1231(a)(6) to permit the
detention of removable aliens for as long as “reasonably nec-
essary.” Zadvydas v. Davis, 533 U.S. 678, 689, 699 (2001).
Clark simply holds that this interpretation also applied to the
other two groups of aliens specifically referred to in the same
statute. 125 S. Ct. at 722.
We see the Landgraf8 retroactivity analysis employed in St.
Cyr as a different animal. Although the first part of the test
involves statutory construction to determine whether Con-
gress meant a particular provision to apply to conduct occur-
7
We recognize that some other circuits have disagreed with this
approach, arguing that some sort of reliance by an alien on existing immi-
gration laws is not a requisite in the retroactivity analysis. See Olatunji v.
Ashcroft, 387 F.3d 383 (4th Cir. 2004); Ponnapula v. Ashcroft, 373 F.3d
480 (3d Cir. 2004).
8
See Landgraf v. USI Film Products, 511 U.S. 244 (1994).
556 KELAVA v. GONZALES
ring before the effective date of a new law, when the answer
to that question is not clear, the test appears to shift to an “as
applied” analysis — whether applying the current law would
have an impermissible retroactive effect by, for example,
upsetting the settled expectations of the person or class of per-
sons challenging its application. St. Cyr, 533 U.S. at 321.
Indeed, the Supreme Court itself has recognized that applying
a new provision may have a precluded retroactive effect as to
one group but not to another. See Martin v. Hadix, 527 U.S.
343, 361-62 (1999) (declining to apply PLRA attorney fee
limits to work performed before effective date, but applying
fee cap to work performed after effective date of act, even
though both groups involved cases filed prior to passage of
the Act); see also id. at 360 (“[A]s applied to work performed
after the effective date of the PLRA, the PLRA has future
effect on future work; this does not raise retroactivity con-
cerns.”(emphasis added)).
In this case, the language of the current statute is clear —
§ 212(c) relief is simply not available — but the question is
whether applying the law in effect would have an impermissi-
ble retroactive effect. Reading Clark very broadly, Kelava
argues that if applying it to any person or groups would have
such an effect, then it cannot be applied even to persons or
groups that do not have the same sort of reasonable, settled
expectations.
Although Clark is a very recent case, the Supreme Court
appears reluctant to extend its reach beyond cases involving
statutory construction using the constitutional avoidance prin-
ciple. See Spector v. Norwegian Cruise Line Ltd., 125 S. Ct.
2169, 2182-83 (2005) (plurality opinion) (describing Clark as
“simply a rule of consistent interpretation of the statutory
words”); id. at 2187 (Thomas, J., concurring in part)
(“Today’s decision, then, cabins the Clark principle to apply
only when the canon of constitutional avoidance is invoked to
choose among ambiguous readings of a statute.”). We are
KELAVA v. GONZALES 557
therefore hesitant to use the broader reading of Clark that
Kelava advocates to upset settled circuit precedent.
Finally, we note that the Supreme Court recently denied
certiorari in Thom v. Ashcroft, 369 F.3d 158 (2d Cir. 2004),
cert. denied, 126 S. Ct. 40 (2005). In Thom, the Second Cir-
cuit, like this circuit, took the position that aliens who did not
plead guilty prior to IIRIRA do not have the same settled
expectations as the aliens in St. Cyr, and therefore do not fall
within its parameters. Notwithstanding the vocal dissent,9 a
lukewarm majority opinion,10 and an apparent circuit split (see
supra note 7), the Court declined to take the case. Although
it is difficult to discern the reasons behind denials of certio-
rari, if Clark really means what Kelava argues, Thom would
have been an excellent vehicle to clarify that Clark’s analysis
applies in the retroactivity context. At a minimum, the Court
has not clearly rejected the position that we and the Second
Circuit have taken.
[8] A three-judge panel cannot disregard prior circuit prece-
dent unless it has been effectively overruled by an intervening
Supreme Court decision. See Miller v. Gammie, 335 F.3d 889,
899-900 (9th Cir. 2003) (en banc). While the intervening
decision need not involve an identical issue, its implications
do need to be sufficiently discernable so that the two cases are
“clearly irreconcilable.” Id. at 900. We do not believe the test
is met in this case because, as described above, Clark is dis-
tinguishable, its application has apparently been limited by
the Supreme Court itself, and the Supreme Court — by deny-
ing certiorari in Thom — declined to interfere with this cir-
cuit’s analysis. Although Kelava’s argument is interesting, in
9
Thom, 369 F.3d at 167-73 (Underhill, J., dissenting).
10
In Thom, Judge Calebresi, writing for the majority, indicated that he
personally would agree with the dissent that IIRIRA’s repeal of § 212(c)
relief should operate prospectively only, but found himself precluded by
prior Second Circuit authority from reaching such a conclusion. 369 F.3d
at 163 n.6.
558 KELAVA v. GONZALES
the end we remain bound by existing circuit precedent. There-
fore, consistent with Armendariz-Montoya’s rationale, we
hold there is no retroactive effect in applying the IIRIRA
elimination of § 212(c) relief to Kelava, who quite clearly
engaged in the requisite terrorist activity prior to IIRIRA’s
enactment.11
PETITION DENIED.
11
Because of our holding, we need not reach the government’s argument
that even in 1978 and at the time of Kelava’s plea in 1980, his activities
rendered him ineligible for § 212(c) relief. Under the law that existed at
that time, § 212(c) relief was not available to aliens who “advocate or
teach or who are members of or affiliated with any organization that advo-
cates or teaches . . . (ii) the duty, necessity, or propriety of the unlawful
assaulting or killing of any officer or officers (either of specific individu-
als or of officers generally) of the Government of the United States or of
any other organized Government because of his or their official charac-
ter.” 8 U.S.C. § 1182(a)(28)(F)(ii) (1976).