Camins v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODOLFO CAMINS, 
Petitioner, No. 05-70291
v.
 Agency No.
A92-868-926
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 12, 2007—San Francisco, California
Filed August 28, 2007
Before: Procter Hug, Jr. and William A. Fletcher,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge William A. Fletcher
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
10721
10724 CAMINS v. GONZALES
COUNSEL
Zachary Miller Nightingale, Beth Feinberg, Van Der Hout,
Brigagliano & Nightingale, LLP, San Francisco, California,
for the petitioner.
Allen W. Hausman, U.S. Department of Justice, Washington,
D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Prior to passage of § 301(a)(13) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), a lawful permanent resident (“LPR”) who pled
guilty to an offense making him “inadmissible” retained the
right under former § 101(a)(13) of the Immigration and
Nationality Act (“INA”), as interpreted by Rosenberg v.
Fleuti, 374 U.S. 449 (1963), to make “innocent, casual, and
brief” overseas trips without being classified as seeking
“entry” upon return and thus being exposed to a charge of
being inadmissible. In this petition for review, we must decide
two questions. First, we must decide whether IIRIRA
§ 301(a)(13) abrogated the old INA § 101(a)(13) and the
Fleuti doctrine. If so, an LPR who has been convicted of, or
who has admitted to, commission of an offense making him
CAMINS v. GONZALES 10725
inadmissible cannot travel overseas, even for an innocent,
casual, and brief trip, without being exposed to a charge of
inadmissibility upon return to the United States. Second, if
IIRIRA § 301(a)(13) did abrogate the old INA § 101(a)(13)
and the Fleuti doctrine, we must decide whether this provision
may be applied retroactively to LPRs who acted in reasonable
reliance on the old INA § 101(a)(13), as interpreted by Fleuti.
We hold that IIRIRA § 301(a)(13) did abrogate the old INA
§ 101(a)(13) and the Fleuti doctrine, but that the new law can-
not be applied retroactively to LPRs who acted in reasonable
reliance on the old law prior to IIRIRA’s effective date.
I. Background
Rodolfo Camins is a fifty-five-year-old national of the Phil-
ippines who has lived in the United States since 1978. Camins
was granted temporary resident status in 1988 and has been
an LPR since 1991. He resides in California with his wife and
seventeen-year-old daughter, who are both United States citi-
zens. Camins has a steady job, pays taxes, and provides finan-
cial support and health insurance for his family.
In January 1996, Camins pled guilty to sexual battery under
California Penal Code § 243.4. He was convicted and sen-
tenced to a term of one year, of which he served eight months.
Following his release from prison, Camins was given sex
offender treatment for three and a half years.
On January 2, 2001, Camins was taken into custody by
agents of the Immigration and Naturalization Service (now
the Department of Homeland Security) at the San Francisco
International Airport, when he returned with his wife and
daughter from a three-week trip to visit his ailing mother in
the Philippines. While in custody, Camins was served with a
Notice to Appear placing him in removal proceedings as an
LPR seeking admission under INA § 101(a)(13)(C)(v), 8
U.S.C. § 1101(a)(13)(C)(v). The Notice to Appear charged
that he was inadmissible under INA § 212(a)(2)(A)(i)(I), 8
10726 CAMINS v. GONZALES
U.S.C. § 1182(a)(2)(A)(i)(I), because his conviction was for
a crime involving moral turpitude.
At a hearing in September 2001, Camins conceded remov-
ability, designated the Philippines as the country of removal,
and requested relief from removal under former INA § 212(c),
8 U.S.C. § 1182(c) (repealed 1996). The Immigration Judge
(“IJ”) denied Camins’ application for § 212(c) relief. Camins
appealed to the Board of Immigration Appeals (“BIA”), con-
tending that his order of removal was invalid because he
should not have been charged with inadmissibility. He
pointed out that under the old INA § 101(a)(13), 8 U.S.C.
§ 1101(a)(13), and Rosenberg v. Fleuti, 374 U.S. 449 (1963),
an LPR who travels outside the United States for a brief
period for a legitimate purpose could not be classified as seek-
ing “entry,” and thus subjected to a charge of inadmissibility,
upon his return. He contended that the old INA § 101(a)(13),
and the Fleuti doctrine, should be applied to him. Camins also
argued that the IJ had applied an incorrect legal standard for
relief from removal. The BIA affirmed the IJ’s order of
removal and denial of relief from removal. Camins now peti-
tions for review by this court.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D),
as amended by the REAL ID Act of 2005, to review the con-
stitutional claims and questions of law raised in Camins’ peti-
tion. See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 586-87
(9th Cir. 2005), adopted by 466 F.3d 1121, 1124 (9th Cir.
2006) (en banc). We review questions of law de novo. See
Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.
2006); see also Toro-Romero v. Ashcroft, 382 F.3d 930, 935
(9th Cir. 2004).
II. Discussion
Under the immigration laws, individuals coming into the
United States must undergo inspection by immigration offi-
cials before entering the country. See 8 C.F.R. § 1235.1. In
CAMINS v. GONZALES 10727
the case of an alien seeking “admission” (that is, “lawful
entry”) to the United States, an immigration official may (1)
authorize admission, (2) determine the alien is inadmissible,
or (3) if the alien cannot “establish to the satisfaction of the
examining immigration officer that he or she” is not subject
to removal, charge the alien as inadmissible and detain or
parole him. Id. § 1235.3; see also 8 U.S.C. § 1101(a)(13)(A).
When Camins returned from the Philippines in January 2001,
immigration officials concluded, based on his January 1996
conviction, that he was an alien seeking admission, detained
him, and charged him with inadmissibility. Invoking the so-
called Fleuti doctrine, Camins contends that as an LPR who
made only a short trip outside the country for a legitimate pur-
pose he should not have been classified as seeking admission,
and thus subjected to a charge of inadmissibility, upon his
return.
A. Fleuti Doctrine
[1] Prior to the effective date of IIRIRA, 110 Stat. 3009(1996), April 1, 1997, INA § 101(a)(13) provided:
The term “entry” means any coming of an alien
into the United States, from a foreign port or place
or from an outlying possession, whether voluntarily
or otherwise, except that an alien having a lawful
permanent residence in the United States shall not be
regarded as making an entry into the United States
for the purposes of the immigration laws if the alien
proves to the satisfaction of the Attorney General
that his departure to a foreign port or place or to an
outlying possession was not intended or reasonably
to be expected by him or his presence in a foreign
port or place or in an outlying possession was not
voluntary[.]
8 U.S.C. § 1101(a)(13) (repealed 1996). In Rosenberg v.
Fleuti, 374 U.S. 449 (1963), the Supreme Court held that an
10728 CAMINS v. GONZALES
LPR who made an “innocent, casual, and brief” trip across an
international border did not “intend[ ]” a “departure” within
the meaning of INA § 101(a)(13). Id. at 461. Because the LPR
was thus not an alien seeking “entry” to the United States
upon his return, he was not subject to a charge of inadmissi-
bility. Id.
Fleuti, a Swiss national who had attained LPR status in
October 1952, visited Mexico for about two hours in August
1956. In 1959, Fleuti was ordered deported on the ground that
at the time he returned from Mexico in 1956, he was exclud-
able (now “inadmissible”) based on his homosexuality. Id. at
450-51. The Supreme Court vacated Fleuti’s deportation
order, holding that Congress did not intend “to exclude aliens
long resident in this country after lawful entry who have
merely stepped across an international border and returned in
‘about a couple hours.’ ” Id. at 461. The Court explained that
under INA § 101(a)(13), only a resident alien who “inten[ds]
to depart in a manner which can be regarded as meaningfully
interruptive of the alien’s permanent residence” is subject to
entry requirements, and possible exclusion, when he returns
to the United States. Id. at 462. In contrast, an alien who
makes “an innocent, casual, and brief excursion . . . outside
this country’s borders may not have . . . ‘intended’ . . . a
departure disruptive of his resident alien status and therefore
may not [be] subject . . . to the consequences of an ‘entry’ into
the country on his return.” Id. The Court articulated three non-
exclusive factors for deciding whether a trip is innocent,
casual, and brief: first, “the length of time the alien is absent”;
second, “the purpose of the visit” and whether it is to “accom-
plish some object” contrary to the policy of the immigration
laws; and third, whether the alien had to “procure any travel
documents in order to make [the] trip,” a fact that might
“cause the alien to consider more fully the implications
involved in . . . leaving the country.” Id.
[2] Applying the Fleuti doctrine, we held, in Jubilado v.
United States, 819 F.2d 210 (9th Cir. 1987), that an LPR who
CAMINS v. GONZALES 10729
visited the Philippines for more than three months for the pur-
pose of bringing his family to the United States did not intend
departure, and therefore was not subject to exclusion proceed-
ings upon his return. Id. at 214. In Kamheangpatiyooth v. INS,
597 F.2d 1253 (9th Cir. 1979), a case involving the continu-
ous presence requirement for suspension of deportation rather
than entry under the old INA § 101(a)(13), we considered the
Fleuti factors in holding that an LPR who left the United
States for a month during the “Christmas semester ‘break’ ”
to visit his “gravely ill” mother in Thailand did not intend to
relinquish “the attachment to this country demonstrated by
[his] 12 years of residence.” Id. at 1255, 1258. In both
Jubilado and Kamheangpatiyooth, we relied on Itzcovitz v.
Selective Service, 447 F.2d 888 (2d Cir. 1971). There, the
Second Circuit decided in favor of an LPR from Argentina
who sought a declaratory judgment that a three-week trip for
a training course in Israel conducted by his employer, El Al
Israel Airlines, would not subject him to entry and “the threat
of being declared an excludable alien upon his return.” Id. at
889. The court in that case reasoned that Congress did not
intend to subject to exclusion an LPR making a “temporary”
trip for an “entirely bona fide, honorable and lawful” purpose.
Id. at 893-94.
B. Survival of Fleuti Doctrine After IIRIRA
The government does not dispute that Camins’ three-week
trip to visit his ailing mother in the Philippines would qualify
as an innocent, casual, and brief trip under Fleuti and subse-
quent case law. It argues instead that, in enacting IIRIRA in
1996, Congress abrogated the innocent, casual, and brief trip
exception to entry for LPRs and replaced Fleuti’s subjective
intent inquiry with a general presumption that LPRs are not
seeking entry, subject to enumerated exceptions. As revised
by § 301(a) of IIRIRA, INA § 101(a)(13) now reads:
(A) The terms “admission” and “admitted” mean,
with respect to an alien, the lawful entry of the alien
10730 CAMINS v. GONZALES
into the United States after inspection and authoriza-
tion by an immigration officer.
...
(C) An alien lawfully admitted for permanent resi-
dence in the United States shall not be regarded as
seeking an admission into the United States for pur-
poses of the immigration laws unless the alien —
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a
continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having
departed the United States,
(iv) has departed from the United States while
under legal process seeking removal of the alien
from the United States, including removal proceed-
ings under this chapter and extradition proceedings,
(v) has committed an offense identified in section
1182(a)(2) of this title, unless since such offense the
alien has been granted relief under section 1182(h)
or 1229b(a) of this title, or
(vi) is attempting to enter at a time or place other
than as designated by immigration officers or has not
been admitted to the United States after inspection
and authorization by an immigration officer.
8 U.S.C. § 1101(a)(13) (emphasis added). If the government’s
argument about IIRIRA is correct, we assume that Camins
could be classed as seeking “admission” (formerly “entry”)
under subsection (v) of the new § 101(a)(13)(C), 8 U.S.C.
§ 1101(a)(13)(C)(v), because he has been convicted of a
CAMINS v. GONZALES 10731
crime involving moral turpitude, “an offense identified in [8
U.S.C.] section 1182(a)(2),” notwithstanding the fact that his
trip was innocent, casual, and brief.
[3] The question whether IIRIRA abrogated the Fleuti doc-
trine appears to be one of first impression in this circuit. Cf.
Toro-Romero, 382 F.3d at 935-36 (applying INA as revised
by IIRIRA without considering role of Fleuti); see also
Sinotes-Cruz, 468 F.3d at 1203 (recognizing limited holding
of Toro-Romero). However, the BIA and three other circuits
have held that the Fleuti doctrine has not survived IIRIRA’s
revision of INA § 101(a)(13). See Matter of Collado-Munoz,
21 I. & N. Dec. 1061, 1064-65 (BIA 1998) (en banc) (as
amended); Malagon de Fuentes v. Gonzales, 462 F.3d 498,
501 (5th Cir. 2006); Olatunji v. Ashcroft, 387 F.3d 383, 395-
96 (4th Cir. 2004); Tineo v. Ashcroft, 350 F.3d 382, 395-96
(3d Cir. 2003).
[4] In Matter of Collado-Munoz, the BIA vacated an IJ’s
holding that an LPR who “return[ed] to the United States after
a 2-week visit to his native country” could not be “properly
charged as an arriving alien who was inadmissible” because
he “had made only a ‘brief, casual, and innocent’ departure.”
21 I. & N. Dec. at 1062. The BIA concluded that IIRIRA,
enacted “[s]hortly before the respondent’s return to the United
States,” had changed the INA so that the Fleuti doctrine no
longer applied. Id. at 1063. Looking first at the plain language
of INA § 101(a)(13), as revised, the BIA observed that it “no
longer defines the term ‘entry’ and no longer contains the
term ‘intended,’ which formed the central basis for the
Supreme Court’s reasoning in [Fleuti]. Instead, the amended
section specifically defines the circumstances under which a
returning [LPR] will be deemed to be seeking admission into
the United States.” Id. at 1065. Based on these general
changes, and on the enumerated exception in the new section
for travel “for a continuous period in excess of 180 days,” the
BIA concluded that “Congress . . . amended the law to
10732 CAMINS v. GONZALES
expressly preserve some, but not all, of the Fleuti doctrine.”
Id. According to the BIA,
The plain reading of this amended law is that Con-
gress has directed that a returning [LPR] who is
described in section 101(a)(13)(C)(i)-(vi) of the Act
shall be regarded as “seeking an admission” into the
United States, without regard to whether the alien’s
departure from the United States might previously
have been regarded as “brief, casual, and innocent”
under the Fleuti doctrine.
Id. at 1066.
In reaching this conclusion, the majority in Matter of
Collado-Munoz rejected the arguments of dissenting Board
Member Rosenberg, who pointed out that “the statute is
utterly silent as to the continued vitality of the Fleuti doc-
trine,” 21 I. & N. Dec. at 1075 (Rosenberg, Board Member,
dissenting), and that the plain language of INA § 101(a)(13),
as revised by IIRIRA, could be read to “mean that those fall-
ing into the six categories may be treated as seeking to be
admitted despite their lawful resident status” rather than “that
they must be treated as seeking to be admitted.” Id. at 1067
(emphasis in original). Board Member Rosenberg argued that
the Fleuti factors should still play a role in a discretionary
determination whether an LPR who, in her view, “may be
treated as an arriving alien” because he falls within one of the
six exceptions in the new INA § 101(a)(13), “will be treated
as such.” Id. at 1075.
When the BIA explicitly adopts in a published opinion a
particular interpretation of an ambiguous provision of the
INA, we apply Chevron deference to its interpretation and
adopt the agency’s view “so long as it is reasonable.” Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir. 2006)
(citing Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 844 (1984)). The Third Circuit applied this
CAMINS v. GONZALES 10733
rule to the new INA § 101(a)(13) in Tineo. Tineo was
detained and charged with inadmissibility based on prior drug
convictions upon returning from a trip of “a few weeks” to his
native country. Tineo, 350 F.3d at 388. Considering whether
to apply the BIA’s interpretation of the new INA § 101(a)(13)
in Matter of Collado-Munoz to Tineo’s case, the court
acknowledged that Board Member Rosenberg’s arguments
had “some force,” and stated that, based on the plain language
of the new INA § 101(a)(13) alone, it “would tend to agree
that the ‘shall not . . . unless’ construction is sufficiently
ambiguous to permit the consideration of other factors” —
such as the Fleuti factors — “even if a returning alien falls
into one of the six enumerated exceptions.” Id. at 390.
However, the court in Tineo emphasized that “Congress not
only altered the grammatical structure by enacting [IIRIRA]
§ 301(a)(13), it also eliminated the key terms ‘entry’ and
‘intended’ from § 101(a)(13) and replaced the former statute
with a comprehensive scheme for determining the classifica-
tion of returning aliens.” Id. at 391. Further, the court noted
that the House Judiciary Committee had stated, with regard to
a former version of IIRIRA § 301(a)(13), that it intended to
“preserve[ ] a portion of the Fleuti doctrine . . . [but] overturn
certain interpretations of Fleuti.” Id. at 392 (quoting H.R.
Rep. No. 104-469, at 225-26 (1996)). Finally, the court
observed that while Congress had “retain[ed] the language of
Fleuti,” namely “the operative terms intent, innocent, casual,
or brief,” in other immigration law provisions, it had drafted
the new INA § 101(a)(13) to “delineat[e] six specific scenar-
ios under which a returning alien would be considered an
alien seeking admission.” Id. at 392-93. These changes, the
court reasoned, were consistent with “a complete makeover of
§ 101(a)(13) . . . specifically intended to supplant the subjec-
tive intent inquiry that was a feature of the old law.” Id. at
393. Given the ambiguity of the new INA § 101(a)(13), and
the BIA’s undisputed authority to interpret the immigration
laws, the Third Circuit elected to follow the BIA’s holding in
10734 CAMINS v. GONZALES
Matter of Collado-Munoz. Id. at 396-97; see also Malagon de
Fuentes, 462 F.3d at 501-02.
[5] For the reasons given by the Third Circuit, we cannot
conclude that the BIA’s interpretation in Matter of Collado-
Munoz is unreasonable. We therefore hold, in light of the def-
erence owed the BIA, that IIRIRA § 301(a)(13) abrogated the
Fleuti doctrine.
C. Retroactivity
Camins argues that even if IIRIRA abrogated the Fleuti
doctrine, the new INA § 101(a)(13) cannot be applied to his
case. Doing so, he contends, would retroactively attach a new
disability to his pre-IIRIRA guilty plea: the inability to make
an innocent, casual, and brief trip abroad without being
exposed to a charge of inadmissibility upon return. We review
de novo, and without Chevron deference to the BIA, whether
a change to an immigration law is impermissibly retroactive.
Sinotes-Cruz, 468 F.3d at 1194, 1198; see also Valencia-
Alvarez v. Gonzales, 469 F.3d 1319, 1326 (9th Cir. 2006).
The application of a statute is retroactive “if it alters the
legal consequences of acts completed before its effective
date.” Chang v. United States, 327 F.3d 911, 920 (9th Cir.
2003). Such “[r]etroactive application of statutes is disfavored
in the absence of clear contrary Congressional intent.” Id.This is true because “[e]lementary considerations of fairness
dictate that individuals should have an opportunity to know
what the law is and to conform their conduct accordingly; set-
tled expectations should not be lightly disrupted.” Landgraf v.
USI Film Prods., 511 U.S. 244, 265 (1994).
The Supreme Court in Landgraf articulated a two-step test
for determining whether a federal statute applies retroactively.
A court first must “determine whether Congress has expressly
prescribed the statute’s proper reach.” Id. at 280. If Congress
has clearly provided that a statute will apply retroactively, the
CAMINS v. GONZALES 10735
court’s work ends. However, “absent clear congressional
intent favoring” retroactive application, id., the court must
move to the second step of the Landgraf test, under which it
determines whether “the new provision attaches new legal
consequences to events completed before its enactment” such
that it interferes with “familiar considerations of fair notice,
reasonable reliance, and settled expectations.” Id. at 270; see
also Chang, 327 F.3d at 920 & n.8.
Courts frequently describe this analysis as an inquiry into
whether the application of a statute is “impermissibly” retro-
active. See, e.g., I.N.S. v. St. Cyr, 533 U.S. 289, 316 (2001)
(“[T]he first step in determining whether a statute has an
impermissible retroactive effect is to ascertain whether Con-
gress has directed with the requisite clarity that the law be
applied retrospectively.”); Saravia-Paguada v. Gonzales, 488
F.3d 1122, 1130 (9th Cir. 2007) (“Absent an unmistakable
congressional directive, we may determine that a statute is
impermissibly retroactive if it ‘takes away or impairs vested
rights acquired under existing laws, or creates a new obliga-
tion, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past.’ ”)
(quoting Landgraf, 511 U.S. at 269). To be precise, however,
the Landgraf framework merely creates a presumption about
the meaning, rather than the permissibility, of statutory text.
Cf. Landgraf, 511 U.S. at 272 (“Because it accords with
widely held intuitions about how statutes ordinarily operate,
a presumption against retroactivity will generally coincide
with legislative and public expectations.”). Thus, the term
“impermissibly” is a bit of a misnomer. There is no question
of Congress’ power to require, within constitutional limits,
that a statute operate retroactively. What courts really mean
when they say that a statute has an “impermissibly retroactive
effect” under Landgraf is that there has been no clear expres-
sion of congressional intent that the statute should operate
retroactively to disrupt a settled reliance interest.
Applying the Landgraf test, the Court held in St. Cyr that
IIRIRA’s repeal of former INA § 212(c), which allowed the
10736 CAMINS v. GONZALES
Attorney General to waive deportation, did not apply retroac-
tively to aliens who pled guilty, prior to IIRIRA’s effective
date, to criminal offenses making them eligible for deporta-
tion. 533 U.S. at 294-95, 326. In St. Cyr, an LPR from Haiti
pled guilty on March 8, 1996, to the sale of a controlled sub-
stance in violation of Connecticut law. Id. at 293. While the
conviction made St. Cyr deportable, he remained eligible for
waiver under § 212(c) at the time he pled guilty. By the time
the INS commenced proceedings against St. Cyr, on April 10,
1997, however, IIRIRA had replaced § 212(c) waiver of
deportation with cancellation of removal, for which resident
aliens convicted of aggravated felonies, including certain drug
offenses, are ineligible. Id. at 293, 297. St. Cyr argued that the
repeal of § 212(c) did not apply retroactively to his case.
[6] Under the first step of the Landgraf test, the Court in
St. Cyr rejected the government’s arguments that IIRIRA
“provide[d] a clear statement of congressional intent to apply
IIRIRA’s repeal of § 212(c) retroactively.” Id. at 317. As evi-
dence that the “demanding” “standard for finding such unam-
biguous direction” was not met, the Court noted that Congress
had included language in IIRIRA expressly stating that other
provisions would apply retroactively, but had failed to include
similar language with respect to the section repealing
§ 212(c). Id. at 316, 318-19. Turning to the second step of the
Landgraf test, the Court concluded that the repeal of § 212(c)
did attach “new legal consequences” to LPRs’ pre-IIRIRA
plea agreements. Id. at 321. It reasoned that, although relief
under § 212(c) had been discretionary, IIRIRA caused LPRs
convicted of certain offenses to face “certain deportation,”
rather than merely “possible deportation.” Id. at 325. The
Court held that retroactive application of this change of law
would interfere with plea-convicted LPRs’ “reasonable reli-
ance on the continued availability of discretionary relief from
deportation.” Id. at 324. According to the Court, “as a general
matter, alien defendants considering whether to enter into a
plea agreement are acutely aware of the immigration conse-
quences of their convictions,” and “in the years leading up to
CAMINS v. GONZALES 10737
. . . IIRIRA, preserving the possibility of such relief [from
deportation] would have been one of the principal benefits
sought by defendants deciding whether to accept a plea offer
or instead to proceed to trial.” Id. at 322-23. Therefore, the
Court concluded that Ҥ 212(c) relief remains available for
aliens, like [St. Cyr], whose convictions were obtained
through plea agreements and who . . . would have been eligi-
ble for § 212(c) relief at the time of their plea under the law
then in effect.” Id. at 326.
[7] Since the Court’s decision in St. Cyr, we have applied
its holding to other provisions of the immigration laws that
affect plea-convicted aliens. See, e.g., Sinotes-Cruz, 468 F.3d
at 1202-03 (“[P]art B of the stop-time rule of § 1229b(d)(1)
does not apply retroactively to the seven-year continuous resi-
dence requirement of § 1229b(a)(2) for an alien who pled
guilty before the enactment of IIRIRA and was eligible for
discretionary relief at the time IIRIRA became effective.”);
Kankamalage v. INS, 335 F.3d 858, 860, 863 (9th Cir. 2003)
(immigration regulation promulgated in 1990, which made
aliens convicted of “a particularly serious crime” ineligible
for asylum, did not apply retroactively to an alien who pled
guilty to robbery in 1988). However, we have not reached the
question presented here: whether the new INA § 101(a)(13)
may be applied retroactively to LPRs who pled guilty prior to
the enactment of IIRIRA.
We are aware of only one appellate case, Olatunji v. Ash-
croft, 387 F.3d 383 (4th Cir. 2004), that has dealt directly
with this question.1 There, the Fourth Circuit held that the new
INA § 101(a)(13) did not apply retroactively to an LPR from
Nigeria who had pled guilty to the federal offense of “theft of
government property” in 1994, prior to IIRIRA, and was
1
As discussed above, the BIA and the Third and Fifth Circuits have
addressed the issue of whether IIRIRA abrogated Fleuti, but they have not
reached the additional question of whether this change may be retroac-
tively applied to LPRs in Camins’ circumstance.
10738 CAMINS v. GONZALES
detained and “classified as a lawful permanent resident seek-
ing ‘admission’ ” when he returned from a nine-day trip to
London in 1998, after IIRIRA. Id. at 386, 396. Today, we join
the Fourth Circuit in holding that the pre-IIRIRA law of entry,
as it existed under the old INA § 101(a)(13) as interpreted by
Fleuti, continues to be available to LPRs who pled guilty,
prior to IIRIRA’s effective date, to offenses that would other-
wise cause them to be treated as seeking admission under the
new INA § 101(a)(13).
[8] We begin with the first step of the Landgraf test, which
requires us to determine whether “Congress has expressly pre-
scribed the . . . proper reach” of IIRIRA § 301(a)(13), the new
INA § 101(a)(13). Landgraf, 511 U.S. at 280. The Fourth Cir-
cuit held in Olatunji, and the government concedes here, that
there is no evidence of “clear congressional intent” that
IIRIRA § 301(a)(13) apply retroactively. Olatunji, 387 F.3d at
389, 393. We note that insofar as the BIA suggested in its
order that the general effective date of Title III-A of IIRIRA,
April 1, 1997, is sufficient evidence of Congress’ intent that
the sections in that title, including § 301(a)(13), apply retroac-
tively, the Supreme Court rejected the identical argument in
St. Cyr. See St. Cyr, 533 U.S. at 317 (holding that IIRIRA
§ 309(a), 110 Stat. 3009-625 (1996), does not establish Title
III-A’s retroactive reach).
Where congressional intent is unclear, we move to the sec-
ond step of the Landgraf test, asking whether retroactive
application would “attach[ ] new legal consequences to events
completed before its enactment” such that it would interfere
with “familiar considerations of fair notice, reasonable reli-
ance, and settled expectations.” Landgraf, 511 U.S. at 270.
Camins argues that the new INA § 101(a)(13) does attach a
new legal consequence to his guilty plea because, based on
his conviction, it classifies him as seeking entry and exposes
him to a charge of inadmissibility upon return from travel out-
side the United States, no matter how innocent, casual, and
brief the travel. We agree.
CAMINS v. GONZALES 10739
[9] Camins’ guilty plea made him inadmissible, and
affected his ability to travel outside the United States, even
under the old law. But whereas the old INA § 101(a)(13), as
interpreted by Fleuti, allowed Camins to take innocent,
casual, and brief trips outside the United States without sub-
jecting him to a charge of inadmissibility, the new INA
§ 101(a)(13) would effectively prohibit him from making any
overseas travel. Because the ability to make innocent, casual,
and brief overseas trips is often critical to LPRs’ ability to ful-
fill family and business obligations, this new legal conse-
quence is significant. See, e.g., Jubilado, 819 F.2d at 213;
Kamheangpatiyooth, 597 F.2d at 1257-59; Itzcovitz, 447 F.2d
at 893-94. By classifying as seeking admission LPRs who
would not previously have been so classified, and thus expos-
ing them to charges of inadmissibility they would not previ-
ously have faced, the new INA § 101(a)(13) clearly affects
their substantive rights. See Landgraf, 511 U.S. at 278;
Republic of Austria v. Altmann, 541 U.S. 677, 695 (2004)
(“statutes that create jurisdiction where none otherwise exists
speak not just to the power of a particular court but to the sub-
stantive rights of the parties as well” (internal quotation
marks, alterations, and citations omitted)).
The government argues that Camins could have avoided
any negative legal consequence imposed by the new INA
§ 101(a)(13) simply by choosing not to travel outside the
United States. But this suggestion only emphasizes the
strength of Camins’ argument. Before the passage of the new
INA § 101(a)(13), Camins’ guilty plea did not deprive him of
the right to visit family members or conduct business outside
the United States, so long as the travel was innocent, casual,
and brief. Now, if the new INA § 101(a)(13) may properly be
applied to him, he is effectively confined to the United States,
with no ability to visit his ailing mother or otherwise travel
abroad. The argument that Camins “should have discontinued
all foreign travel after IIRIRA’s enactment merely confirms
its retroactive effect on his guilty plea.” Olatunji, 387 F.3d at
398.
10740 CAMINS v. GONZALES
The government also argues that the new INA § 101(a)(13)
does not attach any new legal consequence to Camins’ plea
because “[e]ven if Camins had been allowed to return to the
United States . . . the Government could still have com-
menced removal proceedings against him.” The Supreme
Court rejected a similar argument in St. Cyr. The government
had argued that because the discretionary waiver under
§ 212(c) did not guarantee that LPRs like St. Cyr could stay
in the country, its repeal had no legal consequence for pur-
poses of retroactivity. The Court reasoned that “[t]here is a
clear difference, for the purposes of retroactivity analysis,
between facing possible deportation and facing certain depor-
tation.” St. Cyr, 533 U.S. at 325; see also Garcia-Ramirez v.
Gonzales, 423 F.3d 935, 941, 945 (9th Cir. 2005) (Fisher, J.,
concurring); Kankamalage, 335 F.3d at 863. Similarly, there
is a clear difference between a removal proceeding brought
against an LPR legally inside the country and a removal pro-
ceeding against an LPR seeking admission. Whereas the sin-
gle crime of moral turpitude charged in Camins’ Notice to
Appear constituted sufficient grounds for inadmissibility if
Camins were classified as seeking admission, that crime may
or may not support a charge of removal against him as an
LPR legally in the country. Compare 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (“Inadmissible Aliens”) (making a sin-
gle crime of moral turpitude a ground for inadmissibility
regardless of when it was committed), with 8 U.S.C.
§ 1227(a)(2)(A)(i)(I) (“Deportable Aliens”) (making a single
crime of moral turpitude a ground for removal only if it was
committed within five years of lawful entry).
Even assuming, arguendo, that Camins is removable as a
legally present LPR based on a charge that immigration offi-
cials have not brought, a charge of inadmissibility is more dis-
advantageous to Camins than such a charge of removal. As a
general matter, it is the alien who bears the burden of proving
admissibility, while it is the government that must prove
removability by “clear and convincing evidence.” See Toro-
Romero, 382 F.3d at 936 n.9. Moreover, the Supreme Court
CAMINS v. GONZALES 10741
and this court have held, as a matter of constitutional law, that
inadmissible aliens need not be afforded the same protections
as removable aliens. See Landon v. Plasencia, 459 U.S. 21,
32-34 (1982); Armendariz-Montoya v. Sonchik, 291 F.3d
1116, 1123 (9th Cir. 2002) (“[E]xclusion proceedings provide
fewer procedural protections than deportation proceed-
ings[.]”). Indeed, in Jubilado, we recognized that whether an
overseas trip by a plea-convicted LPR fell within the Fleuti
doctrine mattered precisely because if his “return to the
United States did not amount to an entry,” he “had a right to
have the effect of his conviction determined in a deportation
proceeding with its greater procedural safeguards” rather than
in an exclusion proceeding. 819 F.2d at 214; see also id. at
212.
In determining whether the attachment of new legal conse-
quences to past actions conflicts with “familiar considerations
of fair notice, reasonable reliance, and settled expectations,”
Landgraf, 511 U.S. at 270, we require that reliance on the
prior law “would have been objectively reasonable under the
party’s circumstances.” Hernandez de Anderson v. Gonzales,
___ F.3d ___, No. 05-74132, 2007 WL 2264698, at *10 (9th
Cir. Aug. 9, 2007); see also Kelava v. Gonzales, 434 F.3d
1120, 1124-25 & n.7 (9th Cir. 2006) (as amended) (rejecting
claim of non-retroactivity because no reliance interest was
implicated by statutory change), cert. denied, 127 S. Ct. 43(2006). “We have formulated this rule in the negative: Aliens
making a Landgraf retroactivity argument cannot prevail if
they cannot plausibly claim that they would have acted . . .
differently if they had known about the elimination of [the]
relief.” Hernandez de Anderson, 2007 WL 2264698, at *10
(internal quotations omitted) (alteration in original).
[10] Although evidence of a guilty plea or other quid pro
quo exchange that could reasonably have been made in reli-
ance on an old law is not the exclusive means of proving reli-
ance, see id.; Chang, 327 F.3d at 920 n.8, it is clearly
sufficient. See Garcia-Ramirez, 423 F.3d at 944 (Fisher, J.,
10742 CAMINS v. GONZALES
concurring). As the Supreme Court stated in St. Cyr, “as a
general matter, alien defendants considering whether to enter
into a plea agreement are acutely aware of the immigration
consequences of their convictions.” 533 U.S. at 322. The
Court reasoned that it would be fundamentally unfair, after
alien defendants had weighed these consequences and
accepted a guilty plea, to attach new consequences to the
attendant conviction. Id. at 323-24. We agree with Camins,
and with the Fourth Circuit, that limitation on the ability to
travel outside the United States is one of the “immigration
consequences” of which LPR defendants considering whether
to enter into a plea agreement would be acutely aware, and
that “aliens who accepted a plea agreement prior to IIRIRA
could reasonably have relied on their continuing ability to
take brief trips abroad.” Olatunji, 387 F.3d at 397. The new
INA § 101(a)(13) and its abrogation of the Fleuti doctrine,
when applied to aliens convicted pursuant to a guilty plea
prior to IIRIRA, therefore disrupts precisely the sort of settled
reliance interests that, in the absence of a clear statement to
the contrary, Landgraf presumes Congress intended to leave
intact.
Conclusion
[11] We hold that IIRIRA § 301(a)(13) abrogated the Fleuti
doctrine developed under the old INA § 101(a)(13). Under the
new INA § 101(a)(13), LPRs who have been convicted of, or
who have admitted to, commission of certain crimes cannot
travel outside the country — even for innocent, casual, and
brief trips previously allowed — without facing charges of
inadmissibility upon their return. Retroactive application of
the new INA § 101(a)(13) thus attaches a new legal conse-
quence to the convictions of LPRs who pled guilty to these
crimes prior to its enactment. Because the ability to travel
abroad is one of the important “immigration consequences”
that LPRs would take into account, and because LPRs who
pled guilty to such offenses prior to IIRIRA would have rea-
sonably relied on the continuing ability to travel abroad under
CAMINS v. GONZALES 10743
the old INA § 101(a)(13), as interpreted by Fleuti, we hold
that the new INA § 101(a)(13) may not be applied retroac-
tively to them.
In light of our holding that Camins is entitled to rely on the
old INA § 101(a)(13), as interpreted by Fleuti, we do not
reach his argument that the new INA § 101(a)(13) violates
equal protection by distinguishing between LPRs who briefly
leave the United States and those who remain here. Nor need
we consider Camins’ argument that the IJ applied an incorrect
legal standard for relief from removal.
We remand for further proceedings consistent with our
opinion.
Petition for review GRANTED and REMANDED.