Hernandez De Anderson v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITA HERNANDEZ DE 
ANDERSON,
No. 05-74132
Petitioner,
v.  Agency No.
A19-921-652
ALBERTO R. GONZALES, Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 19, 2006—San Francisco, California
Submission Withdrawn October 20, 2006
Resubmitted August 3, 2007
Filed August 9, 2007
Before: Susan P. Graber, William A. Fletcher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge William A. Fletcher;
Partial Concurrence and Partial Dissent by Judge Tallman
9471
9474 HERNANDEZ DE ANDERSON v. GONZALES
COUNSEL
John Ayala and Alma Cobos-Ayala, Law Offices of Cobos &
Ayala, Los Angeles, California, for the petitioner.
HERNANDEZ DE ANDERSON v. GONZALES 9475
James E. Grimes and Mary Jane Candaux, Office of Immigra-
tion Litigation, Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Margarita Hernandez de Anderson petitions for review of
the Board of Immigration Appeals’ (“BIA”) dismissal of her
appeal from an order of removal. She contends, first, that the
BIA erred in holding that she failed to meet the requirements
for termination of her removal proceedings under 8 C.F.R.
§ 1239.2(f). Second, she contends that the BIA’s holding that
she was ineligible to apply for suspension of deportation
under former Immigration and Nationality Act (“INA”)
§ 244(a)(2), 8 U.S.C. § 1254(a)(2) (repealed 1997), is an
impermissibly retroactive application of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, div. C, 110 Stat. 3009. We
agree with Petitioner’s second contention and grant her peti-
tion.
I. Background
Petitioner is a 64-year-old native and citizen of Mexico.
She became a lawful permanent resident of the United States
thirty-four years ago, on May 15, 1973, based on her marriage
to a United States citizen whom she had met while she was
living in Mexico.
On June 3, 1981, Petitioner shot her husband multiple times
at close range, but did not kill him. Petitioner was charged
under California law with attempted murder and with dis-
charging a firearm at an inhabited dwelling. Petitioner’s
defense at trial was that she had shot her husband in self-
defense. She testified that her husband was a heavy drinker
9476 HERNANDEZ DE ANDERSON v. GONZALES
who had subjected her to years of abuse. At the time of the
shooting, she was in the process of getting a divorce. She was
staying in a women’s shelter, but on the day of the shooting
came back to the family home to retrieve some of her belong-
ings. Petitioner testified that her husband threatened to “blow
her brains out” and that she shot him in the driveway before
he could get his gun from his car.
The jury declined to convict Petitioner of attempted mur-
der. Instead, it returned convictions for attempted voluntary
manslaughter, Cal. Penal Code § 192, and a firearm charge,
id. § 246. Petitioner was sentenced to six years in prison. She
was released in 1985 after serving four years. Petitioner suc-
cessfully completed probation in 1987.
Since shortly after her release from prison, Petitioner has
worked as a caregiver to home-bound ill and elderly patients.
Her supervisor describes her as “a wonderful Christian per-
son” and “truly a role model for what a good caregiver should
be.” She states that Petitioner is “so popular with . . . clients”
that Petitioner is “busy to the point of having to turn work
down.” A letter from a family with whom Petitioner lived
beginning in March 1985 “as part of her rehabilitation pro-
cess” describes how they came to love and admire her: “We
believe that she epitomizes the traits we all admire: trustwor-
thiness, dedication to worthy goals, the ability to learn from
experience, industriousness, self-reliance, or whatever else
one may choose as attributes of a United States citizen[.]”
Since her release from prison in 1985, Petitioner has annu-
ally filed federal income tax returns. She co-owns a house in
Hemet, California. She speaks, reads, and writes English. The
government does not dispute that she has led a law-abiding
life since 1981.
On August 2, 1995, twenty-two years after she became a
lawful permanent resident and more than ten years after her
release from prison in 1985, Petitioner filed an application for
HERNANDEZ DE ANDERSON v. GONZALES 9477
naturalization. In the application she fully disclosed her 1981
criminal convictions. Petitioner had had no contact with the
Immigration and Naturalization Service (“INS”) either upon
her release from prison in 1985 or in the ten years thereafter.1
Petitioner had been potentially eligible for naturalization as
early as 1990. In 1990, a lawful permanent resident was eligi-
ble for naturalization after five years of continuous residence
if, during that five-year period, the applicant could demon-
strate that she “ha[d] been and still [was] a person of good
moral character, attached to the principles of the Constitution
of the United States, and well disposed to the good order and
happiness of the United States.” 8 U.S.C. § 1427(a) (1990).
Petitioner’s 1981 convictions and term of imprisonment did
not categorically preclude a finding of good moral character
once five years had elapsed after her release from prison in
1985. See 8 U.S.C. § 1101(f) (1990); Lopez-Castellanos v.
Gonzales, 437 F.3d 848, 851 & n.3 (9th Cir. 2006).
When Petitioner applied for naturalization in 1995, she had
just become eligible to apply for suspension of deportation if
the INS sought to deport her based on her convictions. See
INA § 244(a)(2), 8 U.S.C. § 1254(a)(2) (1995) (repealed
1997). She had not been eligible to apply for suspension of
deportation until ten years after her release from prison. See
id. (requiring ten years of continuous presence and good
moral character during that period for suspension of deporta-
tion); 8 U.S.C. § 1101(f)(7) (1990) (providing that good moral
character cannot be established during a period of imprison-
ment longer than six months).
IIRIRA was enacted on September 30, 1996, more than a
year after Petitioner filed her application for naturalization.
1
The INS’s functions were transferred to the Department of Homeland
Security on March 1, 2003. See 6 U.S.C. § 542. Many of the events rele-
vant to Petitioner’s appeal occurred before March 1, 2003, and we refer
to the agency as the INS when discussing those events.
9478 HERNANDEZ DE ANDERSON v. GONZALES
IIRIRA’s effective date was another six months later. See
IIRIRA § 309(a). IIRIRA repealed “suspension of deporta-
tion” and replaced it with “cancellation of removal,” a form
of relief not available to Petitioner because she is an alien
convicted of an aggravated felony. See 8 U.S.C.
§ 1229b(a)(3).
On August 3, 2000, five years after Petitioner filed her
application for naturalization, the INS commenced removal
proceedings against her. On the same day, the INS denied
Petitioner’s naturalization application based on the pendency
of the newly instituted removal proceedings. Petitioner timely
petitioned the INS for review of the denial of her naturaliza-
tion application. One year later, on September 28, 2001, the
INS denied the petition, again citing the pending removal pro-
ceedings.
In the meantime, on September 26, 2000, Petitioner had
asked the immigration judge (“IJ”) to terminate her removal
proceedings under 8 C.F.R. § 1239.2(f) in order to allow her
naturalization application to go forward. Petitioner contended
that § 1239.2(f) authorized the IJ to determine that she was
prima facie eligible for naturalization but for the pendency of
the removal proceedings, even in the absence of a statement
from the INS to that effect. Petitioner had requested such a
statement from the INS District Director the day before, on
September 25, 2000. The record does not contain a response
from the District Director.
The IJ denied Petitioner’s request to terminate the removal
proceedings. On August 17, 2001, Petitioner applied to the IJ
for suspension of deportation, arguing that IIRIRA’s repeal of
that relief was impermissibly retroactive as applied to her,
given that she had applied for naturalization in 1995. The IJ
held that Petitioner was removable under IIRIRA and that
suspension of deportation was not an available form of relief.
Cf. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791-92 (9th Cir.
2003) (as amended) (explaining that cases commenced by the
HERNANDEZ DE ANDERSON v. GONZALES 9479
INS after April 1, 1997, are governed by IIRIRA’s permanent
rules).
The BIA dismissed Petitioner’s appeal on December 10,
2003. The BIA rejected Petitioner’s argument that the IJ erred
in refusing to terminate the removal proceedings under
§ 1239.2(f), holding that Petitioner was required to establish
prima facie eligibility for naturalization with a statement from
the Department of Homeland Security (“DHS”), which had
assumed the INS’s functions earlier in 2003. The BIA also
rejected Petitioner’s argument that the repeal of suspension of
deportation was impermissibly retroactive as applied to her.
Petitioner filed a timely petition for a writ of habeas corpus
in the district court challenging her removal. The district court
transferred the petition to this court pursuant to the REAL ID
Act of 2005, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311.
We now treat Petitioner’s request for relief as a petition for
review of the BIA’s decision. See Rafaelano v. Wilson, 471
F.3d 1091, 1095-96 (9th Cir. 2006). We have jurisdiction to
review Petitioner’s constitutional claims and other questions
of law under 8 U.S.C. § 1252(a)(2)(D).
II. Standards of Review
We defer to an agency’s interpretation of its own regulation
when that interpretation is neither clearly erroneous nor
inconsistent with the regulation. See Singh-Bhathal v. INS,
170 F.3d 943, 945 (9th Cir. 1999). We review de novo claims
of due process violations in immigration proceedings. See
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We
also review de novo whether an application of IIRIRA is
impermissibly retroactive. See Sinotes-Cruz v. Gonzales, 468
F.3d 1190, 1194 (9th Cir. 2006). Because the BIA conducted
its own review of the evidence and law rather than simply
adopting the IJ’s decision, “our review is limited to the BIA’s
decision, except to the extent the IJ’s opinion is expressly
9480 HERNANDEZ DE ANDERSON v. GONZALES
adopted.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.
2000).
III. Discussion
We review two holdings by the BIA. First, we review the
BIA’s holding that the IJ properly denied Petitioner’s request
for termination of removal proceedings under 8 C.F.R.
§ 1239.2(f). Second, we review its holding that IIRIRA’s
repeal of suspension of deportation is not impermissibly retro-
active as applied to Petitioner.
A. Termination of Removal Proceedings
Petitioner contends that the BIA erred as a matter of law in
holding that she was ineligible for termination of removal
proceedings under 8 C.F.R. § 1239.2(f) because she had not
established prima facie eligibility for naturalization by obtain-
ing an affirmative statement to that effect from the DHS. Peti-
tioner makes two arguments in support of her contention.
First, she argues that, under a proper interpretation of
§ 1239.2(f), an IJ may determine that an alien in removal pro-
ceedings “has established prima facie eligibility for natural-
ization” even without a statement to that effect by the DHS.
Second, she argues that, if § 1239.2(f) is interpreted to require
that the DHS determine prima facie eligibility, the DHS has
a “conflict of interest” that violates Petitioner’s right to due
process of law. We address these arguments in turn.
1. Establishing Prima Facie Eligibility for Naturalization
[1] Until 1990, federal district courts considered naturaliza-
tion applications in the first instance. The Immigration Act of
1990 transferred that authority from the district courts to the
Attorney General. Pub. L. No. 101-649, § 401, 104 Stat. 4978,
5038; see De La Bellajaro v. Schiltgen, 378 F.3d 1042, 1045
(9th Cir. 2004). The Attorney General now has “sole authority
to naturalize persons as citizens of the United States.” 8
HERNANDEZ DE ANDERSON v. GONZALES 9481
U.S.C. § 1421(a). That authority, which the Attorney General
has delegated to the DHS, is limited by 8 U.S.C. § 1429,
which states that “no application for naturalization shall be
considered by the Attorney General if there is pending against
the applicant a removal proceeding.” We have stated that
“[t]he natural reading of [§ 1429] is that removal proceedings
and final removal orders are to take precedence over natural-
ization applications.” Perdomo-Padilla v. Ashcroft, 333 F.3d
964, 970 (9th Cir. 2003).
Under certain circumstances, an IJ may terminate removal
proceedings in order to allow an alien’s naturalization appli-
cation to go forward. The governing regulation is 8 C.F.R.
§ 1239.2(f), which provides:
An immigration judge may terminate removal pro-
ceedings to permit the alien to proceed to a final
hearing on a pending application or petition for natu-
ralization when the alien has established prima facie
eligibility for naturalization and the matter involves
exceptionally appealing or humanitarian factors; in
every other case, the removal hearing shall be com-
pleted as promptly as possible notwithstanding the
pendency of an application for naturalization during
any state of the proceedings.
In Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1975), the
BIA interpreted the “prima facie eligibility” requirement of 8
C.F.R. § 242.7(a), the predecessor to § 1239.2(f). The only
material difference between the two versions is that § 242.7(a)
used the pre-IIRIRA vocabulary, referring to “deportation
proceedings” rather than “removal proceedings.” Compare
Matter of Cruz, 15 I. & N. Dec. at 236 (quoting 8 C.F.R.
§ 242.7(a) (1975)), with 8 C.F.R. § 1239.2(f) (2007). The BIA
held in Matter of Cruz that aliens seeking termination of
deportation proceedings under § 242.7(a) could establish
prima facie eligibility for naturalization in two ways. They
could obtain either “an affirmative communication from the
9482 HERNANDEZ DE ANDERSON v. GONZALES
Service” or “a declaration of a [federal district] court that the
alien would be eligible for naturalization but for the pendency
of the deportation proceedings.” Matter of Cruz, 15 I. & N.
Dec. at 237. The BIA thus construed § 242.7(a) to require
aliens to have established prima facie eligibility through
methods outside the deportation proceedings. The BIA “de-
cline[d] to entertain the question of whether an alien is eligi-
ble for naturalization” within the deportation proceedings
because “neither we nor immigration judges have authority
with respect to the naturalization of aliens.” Id.
Following the transfer of authority over naturalization from
the federal district courts to the Attorney General in 1990,
several courts including our own have questioned the vitality
of Matter of Cruz. In particular, we have questioned whether
an alien still can obtain a declaration of prima facie eligibility
from a district court. De La Bellajaro, 378 F.3d at 1047; see
also Zayed v. United States, 368 F.3d 902, 907 & n.6 (6th Cir.
2004); Apokarina v. Ashcroft, 232 F. Supp. 2d 414, 417 (E.D.
Pa. 2002); Cuong Quang Le v. McNamee, No. 06-CV-49-BR,
2006 WL 3004524, at *4-5 (D. Or. Oct. 20, 2006) (conclud-
ing court had no jurisdiction to declare alien prima facie eligi-
ble for naturalization).
[2] After we heard oral argument in Petitioner’s case, the
BIA reaffirmed its holding in Matter of Cruz that an alien
must establish prima facie eligibility outside the removal pro-
ceedings. In In re Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA
2007), the BIA held that, before seeking termination under
§ 1239.2(f), an alien must establish prima facie eligibility by
obtaining an affirmative statement from the DHS. The BIA
wrote that it was reaffirming this aspect of Matter of Cruz
“[b]ecause the same circumstances that were present in Mat-
ter of Cruz still exist today.” Id. at 106. That is, it remains true
that “neither the Board nor the Immigration Judges have juris-
diction to determine an alien’s eligibility for naturalization.”
Id. at 105-06. Therefore, the BIA concluded, “it is appropriate
for the Board and the Immigration Judges to require some
HERNANDEZ DE ANDERSON v. GONZALES 9483
form of affirmative communication from the DHS prior to ter-
minating proceedings” under § 1239.2(f). Id. at 106.2
Petitioner does not challenge the validity of § 1239.2(f)
itself. Rather, she argues that the BIA’s interpretation of the
regulation is erroneous. She points out that the regulation
requires only that an applicant have “established prima facie
eligibility for naturalization,” and that it does not specify the
means by which such prima facie eligibility is to be “estab-
lished.” Petitioner does not contend that the DHS cannot
make such a determination. Rather, she argues that an IJ and
the BIA should be able to do so as well.
In reviewing an agency’s interpretation of its own regula-
tion, “[o]ur task is not to decide which among several compet-
ing interpretations best serves the regulatory purpose.”
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).
Rather, we defer to an agency’s interpretation when that inter-
pretation is neither “plainly erroneous [n]or inconsistent with
the regulation.” Id. (quotation marks omitted); see also Singh-
Bhathal v. INS, 170 F.3d 943, 945 (9th Cir. 1999).
[3] We hold that the BIA’s interpretation of § 1239.2(f) is
not plainly erroneous. The text of the regulation does not spe-
cifically authorize IJs to evaluate prima facie eligibility.
Rather, it requires only that an alien have “established” such
eligibility: An IJ “may terminate removal proceedings . . .
when the alien has established prima facie eligibility for natu-
2
Without citing authority directly in support, the BIA asserts in Acosta
Hidalgo that district courts “no longer have authority to make decisions
as to an alien’s prima facie eligibility for citizenship.” See 24 I. & N. Dec.
at 105. Because the question is not squarely presented in this case, we
express no opinion concerning the BIA’s assertion. We note, however,
that district courts continue to have jurisdiction over at least some ques-
tions related to citizenship. See 8 U.S.C. §§ 1252(b)(5)(B), 1421(c),
1447(b); see also United States v. Hovsepian, 359 F.3d 1144, 1159-64 (9th
Cir. 2004) (en banc) (discussing district courts’ jurisdiction over natural-
ization applications).
9484 HERNANDEZ DE ANDERSON v. GONZALES
ralization and the matter involves exceptionally appealing or
humanitarian factors.” 8 C.F.R. § 1239.2(f). The juxtaposition
of the present perfect tense in “has established” and the pres-
ent tense in “and the matter involves” arguably implies that an
alien shall have established eligibility outside the removal
proceeding being conducted by the IJ. Thus, the BIA’s inter-
pretation requiring an alien to have “established” eligibility
prior to, and outside, the proceedings with a statement by the
governmental authority responsible for considering natural-
ization applications is not a plainly erroneous interpretation of
the regulation.
[4] Nor is the BIA’s interpretation of § 1239.2(f) in Cruz
and Acosta Hidalgo inconsistent with the purpose of the regu-
lation. Petitioner argues that requiring aliens to obtain state-
ments from the DHS in order to establish prima facie
eligibility for naturalization is inconsistent with § 1239.2(f)
because, by refusing to provide such statements, the DHS can
prevent IJs from exercising their discretion to terminate
removal proceedings. Such veto power is not inconsistent
with § 1239.2(f), however. The plain purpose of the regula-
tion is to allow the IJ discretion to terminate proceedings in
cases involving “exceptionally appealing or humanitarian fac-
tors,” so that such aliens can apply for naturalization. 8 C.F.R.
§ 1239.2(f). If the DHS has already declined to state that an
alien is prima facie eligible for naturalization, terminating the
removal proceedings under § 1239.2(f) is likely to produce
unwarranted delay. In such circumstances, the DHS is virtu-
ally certain to deny naturalization, and then will be required
to recommence removal proceedings after that denial. Such
inefficiency would be inconsistent with § 1239.2(f), which
states that, “in every other case, the removal hearing shall be
completed as promptly as possible.” (Emphasis added.)
2. Due Process
Petitioner’s second argument is that the DHS has a “con-
flict of interest” that violates due process. She contends that
HERNANDEZ DE ANDERSON v. GONZALES 9485
a conflict arises where a single agency simultaneously per-
forms the following roles: (1) commencing and prosecuting
removal proceedings; (2) deciding whether to provide an
affirmative statement that an alien is prima facie eligible for
naturalization in order to permit termination of the removal
proceedings; and (3) denying the alien’s naturalization appli-
cation based on the pendency of removal proceedings. Peti-
tioner has cited no case law in support of her argument.
[5] In essence, Petitioner is arguing that the Attorney Gen-
eral and, derivatively, the DHS have been given too much
authority over naturalization and removal decisions. Given
Congress’s “ ‘plenary’ ” power over immigration, and given
the abstract form in which Petitioner’s argument is presented
to us, we cannot conclude that assigning to the DHS the vari-
ous roles just described violates due process. United States v.
Hernandez-Guerrero, 147 F.3d 1075, 1076 (9th Cir. 1998)
(quoting Kleindienst v. Mandel, 408 U.S. 753, 765 (1972)).
B. Suspension of Deportation and Retroactivity
In Landgraf v. USI Film Products, 511 U.S. 244, 265
(1994), the Supreme Court reaffirmed that “[e]lementary con-
siderations of fairness dictate that individuals should have an
opportunity to know what the law is and to conform their con-
duct accordingly; settled expectations should not be lightly
disrupted.” Accordingly, “ ‘the legal effect of conduct should
ordinarily be assessed under the law that existed when the
conduct took place,’ ” and “ ‘congressional enactments . . .
will not be construed to have retroactive effect unless their
language requires this result.’ ” Id. at 264-65 (quoting Kaiser
Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855
(1990) (Scalia, J., concurring); Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988)).
The Supreme Court has set out a two-step analysis to deter-
mine whether a statute has an impermissible retroactive
effect. We begin by determining whether “ ‘Congress has
9486 HERNANDEZ DE ANDERSON v. GONZALES
expressly prescribed’ ” that the statute should apply retroac-
tively. Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2428
(2006) (quoting Landgraf, 511 U.S. at 280). If there is such
a clear indication from Congress, our analysis under Landgraf
ends because “it is beyond dispute that, within constitutional
limits, Congress has the power to enact laws with retrospec-
tive effect.” INS v. St. Cyr, 533 U.S. 289, 316 (2001). If Con-
gress has not clearly indicated its intent to apply a statute to
prior conduct, however, we presume that the statute applies
only prospectively. Landgraf, 511 U.S. at 280. Using that pre-
sumption, we then examine the statute to determine if its
application impermissibly “impose[s] some burden on the
basis of an act or event preceding the statute’s enactment.”
Fernandez-Vargas, 126 S. Ct. at 2428.
In deciding Petitioner’s retroactivity claim, we may readily
dispose of Landgraf’s first step. We have already held that
Congress did not clearly indicate that IIRIRA’s repeal of sus-
pension of deportation should operate retroactively. Jimenez-
Angeles v. Ashcroft, 291 F.3d 594, 601 (9th Cir. 2002). Thus,
after summarizing Petitioner’s conduct in relation to the law
as it stood prior to IIRIRA, we move to the second step of the
Landgraf analysis, namely whether IIRIRA has an impermis-
sible retroactive effect as applied to Petitioner.
1. Petitioner’s Conduct
As recounted in greater detail above, Petitioner was granted
lawful permanent resident status in 1973, thirty-four years
ago, based on her marriage to a United States citizen. In 1981,
Petitioner was convicted under California law of attempted
voluntary manslaughter and discharge of a firearm. She was
released from prison in 1985. Petitioner applied for natural-
ization in 1995. When she applied for naturalization, Peti-
tioner was deportable based on her 1981 convictions. See 8
U.S.C. § 1251(a)(2) (1995).
By applying for naturalization, Petitioner affirmatively
brought herself and her criminal convictions to the attention
HERNANDEZ DE ANDERSON v. GONZALES 9487
of the INS. Confronted with Petitioner’s application, the INS
might simply have granted or denied the application. It also
was possible, however, that the INS would not only deny Peti-
tioner’s application, but also decide to begin deportation pro-
ceedings against her.
Petitioner had been potentially eligible for naturalization as
early as 1990, five years before the date of her application. As
the law then stood, a lawful permanent resident was eligible
for naturalization after five years of continuous residence if,
during that five-year period, the applicant could demonstrate
that she “ha[d] been and still [was] a person of good moral
character, attached to the principles of the Constitution of the
United States, and well disposed to the good order and happi-
ness of the United States.” 8 U.S.C. § 1427(a) (1990); see
also 8 C.F.R. § 316.2(a) (1995). Good moral character could
not be established during periods of incarceration of more
than six months. 8 U.S.C. § 1101(f)(7) (1990). Accordingly,
Petitioner potentially could have satisfied the five-year moral
character requirement for naturalization in 1990, five years
after her release from prison in 1985. In assessing moral char-
acter, the INS was “not limited to reviewing the applicant’s
conduct during the five years immediately preceding the filing
of the application.” 8 U.S.C. § 1427(e) (1990). However, Peti-
tioner’s convictions did not categorically preclude a finding of
good moral character. See id. § 1101(f); Lopez-Castellanos,
437 F.3d at 851 & n.3.
Because she did not apply for naturalization until 1995, five
years after she first became potentially eligible, Petitioner had
also, by the time of her application, become eligible to apply
for suspension of deportation in the event that the INS, in
response to her naturalization application, decided to com-
mence deportation proceedings. Under INA § 244(a)(2), 8
U.S.C. § 1254(a)(2) (repealed 1997), Petitioner was eligible to
apply for suspension of deportation if she could demonstrate
ten years of continuous physical presence and good moral
character. Because she could not establish good moral charac-
9488 HERNANDEZ DE ANDERSON v. GONZALES
ter during her incarceration, Petitioner could not satisfy the
ten-year character requirement until 1995, ten years after her
release from prison in 1985. See 8 U.S.C. § 1101(f)(7) (1990).3
[6] On September 30, 1996, more than a year after Peti-
tioner applied for naturalization, IIRIRA was enacted. Its
effective date was six months later, on April 1, 1997. IIRIRA
repealed suspension of deportation and replaced it with can-
cellation of removal, a form of relief not available to lawful
permanent residents convicted of an aggravated felony. See 8
U.S.C. § 1229b(a)(3). Because Petitioner’s 1981 attempted
voluntary manslaughter conviction qualifies as an aggravated
felony, she is not eligible for cancellation of removal. See 8
U.S.C. § 1101(a)(43)(F), (U); United States v. Maria-
3
In a letter filed after oral argument in this case, the government con-
tends that INA § 244(a)(2) requires that the ten-year continuous period of
good moral character begin immediately after the commission of the
crime. Because conduct during a period of incarceration longer than six
months does not count toward a period of good moral conduct, the effect
of the government’s interpretation of the statute would be that no person
incarcerated for a period longer than six months could ever establish good
moral character in order to be eligible for suspension of deportation under
INA § 244(a)(2). The government has cited no case to us in which either
the BIA or any court has so held.
A BIA opinion, not cited by the government, is inconsistent with the
government’s position. In Matter of Wong, 12 I. & N. Dec. 721 (BIA
1968), the BIA counted the ten-year continuous period of good moral
character backward from the date of application for suspension of deporta-
tion, rather than forward from the date of the crime. Id. at 724-25 (“The
evidence of record affirmatively establishes that the respondent has been
a person of good moral character for at least the ten years preceding his
application for suspension of deportation.”). To the same effect is a later
Seventh Circuit opinion, Rassano v. INS, 492 F.2d 220 (7th Cir. 1974),
also not cited by the government. See id. at 225 (“Petitioner had the bur-
den of establishing that he was and now is a person of good moral charac-
ter during the ten-year period as required in Section 1254(a)(2) . . . . [T]he
Service concedes that this section is none too clear as to when the ten-year
period is to begin. It concluded that Congress meant the period immedi-
ately preceding the date of the suspension application . . . .”). We therefore
conclude that the government’s reading of § 244(a)(2) is incorrect.
HERNANDEZ DE ANDERSON v. GONZALES 9489
Gonzalez, 268 F.3d 664, 669 (9th Cir. 2001). Thus, if
IIRIRA’s repeal of suspension of deportation applies to Peti-
tioner, she has lost the right to seek suspension of deportation
— a right that she had when she applied for naturalization in
1995.
2. Analysis
At Landgraf’s second step, we apply a presumption against
the statute’s retroactive application. “The aim of the presump-
tion is to avoid unnecessary post hoc changes to legal rules on
which parties relied in shaping their primary conduct.” Aus-
tria v. Altmann, 541 U.S. 677, 696 (2004). The presumption
protects the “settled expectations” of individuals by giving
them “an opportunity to know what the law is and to conform
their conduct accordingly.” Landgraf, 511 U.S. at 265.
The Court acknowledged in Landgraf that “deciding when
a statute operates ‘retroactively’ is not always a simple or
mechanical task.” Id. at 268.
[7] Rather than providing a formula to apply at Landgraf’s
second step, the Court has repeatedly instructed courts to
make “a commonsense, functional judgment about whether
the new provision attaches new legal consequences to events
completed before its enactment.” St. Cyr, 533 U.S. at 321
(internal quotation marks omitted) (quoting Martin v. Hadix,
527 U.S. 343, 357-58 (1999) (quoting Landgraf, 511 U.S. at
270)). This judgment “should be informed and guided by
familiar considerations of fair notice, reasonable reliance, and
settled expectations.” Id. (internal quotation marks omitted)
(quoting Martin, 527 U.S. at 358 (quoting Landgraf, 511 U.S.
at 270)). Landgraf is frequently cited for the Court’s para-
phrase of Justice Story: A provision operates retroactively if
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.” Land-
graf, 511 U.S. at 280; see also id. at 269. However, this list
9490 HERNANDEZ DE ANDERSON v. GONZALES
of retroactive effects “merely describe[s] . . . sufficient, rather
than . . . necessary, condition[s] for invoking the presumption
against retroactivity.” Hughes Aircraft Co. v. United States ex
rel. Schumer, 520 U.S. 939, 947 (1997) (emphases in origi-
nal).
The Court has twice considered aliens’ claims that
IIRIRA’s repeal of relief from deportation was impermissibly
retroactive as applied to them. In St. Cyr, the Court held that
IIRIRA’s repeal of waiver of deportation under INA § 212(c)
is impermissibly retroactive as applied to aliens who pled
guilty pursuant to plea agreements before the enactment of
IIRIRA. 533 U.S. at 325-26. The Court wrote, “There can be
little doubt that, as a general matter, alien defendants consid-
ering whether to enter into a plea agreement are acutely aware
of the immigration consequences of their convictions.” Id. at
322. The Court found the “potential for unfairness . . . signifi-
cant and manifest” in the retroactive denial of defendants’ eli-
gibility for § 212(c) relief after the defendants gave up their
right to go to trial based on the opportunity to apply for a
waiver of deportation. Id. at 323. The Court wrote that
“[t]here is a clear difference, for the purposes of retroactivity
analysis, between facing possible deportation and facing cer-
tain deportation.” Id. at 325 (citing Hughes Aircraft, 520 U.S.
at 949; Lindsey v. Washington, 301 U.S. 397, 401 (1937)).
In the Court’s second IIRIRA case, Fernandez-Vargas, the
petitioner was an illegal reentrant whose United States citizen
wife applied on his behalf for lawful permanent resident sta-
tus in 2001, after IIRIRA had rendered him ineligible for
adjustment of status. 126 S. Ct. at 2427. The Court held that
IIRIRA was not impermissibly retroactive as applied to him
because the “predicate action” to his removal was his “indefi-
nitely continuing violation” in remaining in the country as an
illegal reentrant since 1982, “not a past act that he [was] help-
less to undo.” Id. at 2432. IIRIRA did not impermissibly
impose a “burden on the basis of an act or event preceding the
statute’s enactment” because a statute has an impermissible
HERNANDEZ DE ANDERSON v. GONZALES 9491
retroactive effect only when applied to acts or events com-
pleted before the statute’s enactment. Id. at 2428.
St. Cyr has produced considerable disagreement among the
courts of appeal concerning whether “reasonable reliance” on
pre-IIRIRA relief from deportation is a required element of a
Landgraf claim to that relief and, if some form of reliance is
required, what form it must take. Compare Olatunji v. Ash-
croft, 387 F.3d 383, 393-94 (4th Cir. 2004) (holding that
while “the presumption against retroactivity serves reliance
interests, . . . reliance is not a requirement of retroactivity”
because “the historical presumption against retroactive appli-
cation of statutes did not require reliance” and “[n]either
Landgraf nor subsequent Supreme Court authority imposes
any such requirement” (emphases in original)), and Atkinson
v. Att’y Gen., 479 F.3d 222, 227-29 (3d Cir. 2007) (holding
same), with Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir.
2006) (requiring a showing of “objective reliance,” i.e., that
reliance would have been reasonable under the circum-
stances), Wilson v. Gonzales, 471 F.3d 111, 122 (2d Cir.
2006) (requiring evidence of reliance in the form of “categori-
cal” “objective evidence that aliens who engaged in a course
of action . . . ‘almost certainly’ relied reasonably on the con-
tinued availability of . . . relief” or in the form of an “individ-
ualized showing” of actual reliance), and Carranza-de Salinas
v. Gonzales, 477 F.3d 200, 205 (5th Cir. 2007) (following
Second Circuit case pre-dating Wilson in requiring “actual,
subjective reliance on the pre-IIRIRA state of the law” in the
sense that the applicant for relief “detrimentally changed his
position in reliance on continued eligibility” or “actively
engaged in conduct that reflect[ed] an intention to preserve
[his] eligibility” (alterations in original) (internal quotation
marks omitted) (quoting Hernandez-Castillo v. Moore, 436
F.3d 516, 519 (5th Cir. 2006) (quoting Rankine v. Reno, 319
F.3d 93, 99-100 (2d Cir. 2003))); see also Thaqi v. Jenifer,
377 F.3d 500, 504 n.2 (6th Cir. 2004) (noting that “under St.
Cyr, the [alien] need not demonstrate actual reliance upon the
9492 HERNANDEZ DE ANDERSON v. GONZALES
immigration laws in order to demonstrate an impermissible
retroactive effect”).
[8] Expressly disapproving the conclusion of the Third and
Fourth Circuits, this court has held that aliens claiming that
IIRIRA’s repeal of relief from deportation is impermissibly
retroactive as applied to them must demonstrate reasonable
reliance on pre-IIRIRA law. Kelava v. Gonzales, 434 F.3d
1120, 1124-25 & n.7 (9th Cir.) (as amended), cert. denied,
127 S. Ct. 43 (2006); see also Saravia-Paguada, No. 05-
73098, 2007 WL 1462240, at *9 (9th Cir. May 21, 2007)
(rejecting the petitioner’s argument that this court’s “empha-
sis on an alien’s reasonable reliance on a prior law is inconsis-
tent with Supreme Court precedent”). We have formulated
this rule in the negative: Aliens making a Landgraf retroactiv-
ity argument cannot prevail if they “ ‘cannot plausibly claim
that they would have acted . . . differently if they had known’
about the elimination of [the] relief.” Kelava, 434 F.3d at
1124 (quoting Armendariz-Montoya v. Sonchik, 291 F.3d
1116, 1121-22 (9th Cir. 2002)). Because our cases have not
elaborated on how a petitioner may “plausibly claim” that she
would have acted differently had she known about the
impending change in the law, we turn for guidance to the reli-
ance interests the Supreme Court has recognized under Land-
graf.
[9] Where reliance on prior law has figured prominently in
the Court’s analysis of a Landgraf claim, the Court has con-
sidered whether reliance would have been objectively reason-
able under the party’s circumstances without asking whether
the particular party did, in fact, act in reliance on the law.
First, in Martin, the Court held that limits on attorneys’
hourly fee rates imposed by the Prison Litigation Reform Act
(“PLRA”) did not apply to work performed before the pas-
sage of the PLRA. 527 U.S. at 347. The Court’s discussion of
the reliance interest was brief: “Respondents’ counsel per-
formed a specific task — monitoring petitioners’ compliance
with the court orders — and they were told that they would
HERNANDEZ DE ANDERSON v. GONZALES 9493
be compensated at a rate of $150 per hour. Thus, when the
lawyers provided these postjudgment monitoring services
before the enactment of the PLRA, they worked in reasonable
reliance on this fee schedule.” Id. at 358. Deeming reliance on
the fee schedule under such circumstances reasonable, the
Court did not consider whether the attorneys actually did rely
on the rate in the sense that they would not have performed
the work had they known that they would be paid a lower
rate.
Second, in St. Cyr, the Court analyzed St. Cyr’s reasonable
reliance on relief under former § 212(c) by reference to crimi-
nal aliens’ circumstances generally, rather than evidence that
St. Cyr himself actually relied on the availability of the relief
in choosing to plead guilty. The Court reached this conclusion
by finding that “as a general matter, alien defendants consid-
ering whether to enter into a plea agreement are acutely aware
of the immigration consequences of their convictions,” and
that “preserving the possibility of such relief would have been
one of the principal benefits sought by defendants deciding
whether to accept a plea offer or instead to proceed to trial.”
533 U.S. at 322-23 (emphases added). The Court held that the
repeal of the relief was impermissibly retroactive as applied
to all aliens in St. Cyr’s position rather than only to St. Cyr
himself: “We therefore hold that § 212(c) relief remains avail-
able for aliens, like respondent, whose convictions were
obtained through plea agreements and who, notwithstanding
those convictions, would have been eligible for § 212(c) relief
at the time of their plea under the law then in effect.” Id. at
326. Thus, St. Cyr is inconsistent with our pre-St. Cyr dictum
that a criminal defendant would have to make “a specific fac-
tual showing that a plea was entered in reliance on the avail-
ability of discretionary waiver under § 212(c)” in order to
establish a Landgraf claim to the relief. Magana-Pizano v.
INS, 200 F.3d 603, 613 (9th Cir. 1999).
[10] As for the form reliance on prior law may take, the
Court in St. Cyr held that there was reliance when defendants
9494 HERNANDEZ DE ANDERSON v. GONZALES
entered plea agreements based in part on their then-existing
right to apply for § 212(c) relief. However, Landgraf and St.
Cyr make clear that entering into a quid pro quo exchange is
not the sole form of reliance on prior law that can support a
retroactivity claim. As an example of impermissible retroac-
tivity affecting a right other than a contractual or property
right, the Court in Landgraf cited Chew Heong v. United
States, 112 U.S. 536 (1884), which held that “a provision of
the ‘Chinese Restriction Act’ of 1882 barring Chinese labor-
ers from reentering the United States without a certificate pre-
pared when they exited this country . . . . did not bar the
reentry of a laborer who had left the United States before the
certification requirement was promulgated.” Landgraf, 511
U.S. at 271. The Court in Chew Heong found the application
of the Chinese Restriction Act impermissibly retroactive in
part because of the laborers’ justified reliance on prior law in
departing the country: “[T]he plaintiff in error, having left
before any certificate was permitted to be issued, cannot be
required to produce one before re-entering, because, having
resided here [under the prior law], he was clearly entitled . . .
to go from and return to the United States of his own free will
— a privilege that would be destroyed if its enjoyment
depended upon a condition impossible to be performed.” 112
U.S. at 560. The Court drew on Chew Heong again in St. Cyr,
analogizing criminal aliens’ reliance on § 212(c) when plea
bargaining to the Chinese nationals’ “reliance on the state of
the law when they departed.” 533 U.S. at 325 n.55.
We find persuasive the conclusion drawn from these cases
by the Tenth Circuit. Hem, 458 F.3d at 1197. Summarizing,
that court gave three reasons for its holding that “objectively
reasonable reliance on prior law is sufficient to sustain a retro-
activity claim”:
First, [an objective reliance] rule is more directly
tied to the basic aim of retroactivity analysis: in
determining whether it is appropriate to presume
Congress concluded that the benefits of a new law
HERNANDEZ DE ANDERSON v. GONZALES 9495
did not warrant disturbance of interests existing
under prior law, it makes sense to look at the objec-
tive group-based interests that Congress could practi-
cally have assessed ex ante. Second, this rule is
consistent with the Supreme Court’s analyses in
Landgraf and its progeny, none of which required
actual reliance. Third, and most immediately perti-
nent here, the objective approach is consistent with
the actual holding in St. Cyr — the Court’s most
reliance-focused decision — which precluded retro-
active application of IIRIRA’s elimination of
§ 212(c) eligibility to all aliens who reasonably
could have relied on prior law when pleading guilty,
rather than to just those aliens who actually did so
rely.
Id.
As the Tenth Circuit recognized, id. at 1191, two members
of a panel of this court had already come to the conclusion
that the appropriate reliance test is one of “objective reliance.”
In Garcia-Ramirez v. Gonzales, 423 F.3d 935 (9th Cir. 2005)
(per curiam), we held that our prior circuit precedent com-
pelled the conclusion at Landgraf’s first step that Congress
intended the IIRIRA provision at issue to apply retroactively;
therefore, we did not reach Landgraf’s second step. Id. at 940.
Two members of the panel wrote separately to state that, had
they not been compelled by circuit precedent to hold that the
petitioner’s claim failed at the first step, they would have
reached the second step and would have held that the statute’s
application to the petitioner was impermissibly retroactive. Id.
at 941 (Fisher, J., concurring).
Regarding the reliance interest necessary at Landgraf’s sec-
ond step in an IIRIRA case, the two panel members wrote:
As in St. Cyr, . . . a finding of impermissible retro-
activity here would not depend on Garcia-Ramirez
9496 HERNANDEZ DE ANDERSON v. GONZALES
showing that she actually, subjectively relied on 8
U.S.C. § 1254(b)(2) when she departed the United
States. See St. Cyr, 533 U.S. at 322-25 (presuming
a quid pro quo without proof of actual reliance) . . . .
We would not dispense with the requirement of
reasonable reliance. We simply find it to be objec-
tively reasonable that an alien like Garcia-Ramirez,
contemplating a trip outside the United States in
1989, could reasonably rely on the then-applicable
legal standard not later being converted to one that
automatically restarted the clock on her continuous
presence because she exceeded the 90-day limit —
a limit she could have stayed within had that been
the rule at the time.
Id. at 946 (citations omitted); see also Saravia-Paguada, 2007
WL 1462240, at *7 (reasoning that reliance in the form of
criminal conduct is “per se unreasonable”).
[11] We now hold that individuals demonstrate reasonable
reliance on pre-IIRIRA law and “ ‘plausibly claim that they
would have acted . . . differently if they had known’ about the
elimination of [the] relief” if it would have been objectively
reasonable under the circumstances to rely on the law at the
time. Kelava, 434 F.3d at 1124 (quoting Armendariz-
Montoya, 291 F.3d at 1121). Petitioner argues before this
court, as she argued before the BIA and the IJ, that the “rele-
vant past event” to which IIRIRA attached new legal conse-
quences is her application for naturalization in 1995.
Landgraf, 511 U.S. at 270. She argues that, when she applied
for naturalization in 1995, she had a settled expectation in the
existence of suspension of deportation and “implicitly rel-
[ied]” on her eligibility for that relief.
In making our “commonsense, functional judgment” about
whether IIRIRA’s repeal of suspension of deportation is
impermissibly retroactive as applied to Petitioner, we assume
HERNANDEZ DE ANDERSON v. GONZALES 9497
that a lawful permanent resident applying for naturalization is,
like an alien engaged in plea bargaining, “acutely aware of the
immigration consequences” of her action. St. Cyr, 533 U.S. at
322. In Petitioner’s case, those immigration consequences
included placing at risk the life she had established as a lawful
permanent resident in the United States. At the time of her
application in 1995, Petitioner had been living in the United
States as a lawful permanent resident for approximately
twenty-two years. Since her release from prison in early 1985,
she had worked as a caretaker for ill and elderly people,
become a longstanding member of a church, and, in 1992,
purchased a house. During this decade, she had not had any
contact with immigration authorities.
Nevertheless, in 1995, Petitioner brought herself — and her
criminal convictions — to the INS’s attention by applying for
naturalization. In so acting, she incurred the risk that the INS
would choose to initiate deportation proceedings against her
rather than grant her naturalization application. Petitioner’s
application for naturalization was a “completed” act for the
purposes of retroactivity analysis. Having brought her convic-
tions to the INS’s attention, Petitioner could not subsequently
withdraw them from scrutiny. Once she submitted her appli-
cation, “there was no question of undoing” what she had
done. Fernandez-Vargas, 126 S. Ct. at 2432. She had rung the
bell; she could not unring it.
[12] As in St. Cyr, Petitioner acted at a time when the risk
of deportation was lessened by the possibility of relief from
deportation under the law as it then stood. In Petitioner’s case,
that relief was suspension of deportation under INA
§ 244(a)(2), 8 U.S.C. § 1254(a)(2) (repealed 1997). Petitioner
first became eligible to apply for naturalization in 1990, when
five years had passed since her release from prison in 1985.
However, she did not apply for naturalization until 1995, by
which time she had become eligible for suspension of depor-
tation. Although Petitioner could not have been certain that
she would be granted suspension of deportation if her natural-
9498 HERNANDEZ DE ANDERSON v. GONZALES
ization application were denied and deportation proceedings
were commenced, “[t]here is a clear difference, for the pur-
poses of retroactivity analysis, between facing possible depor-
tation and facing certain deportation.” St. Cyr, 533 U.S. at
325.
[13] A “commonsense, functional judgment” leads us to
conclude that a lawful permanent resident in Petitioner’s posi-
tion in 1995 would reasonably have relied on the existence of
relief from deportation in applying for naturalization. A rea-
sonable person in Petitioner’s circumstances, “acutely aware
of the immigration consequences” of her actions, would have
known that waiting to apply for naturalization until ten years
had elapsed after her release from prison — that is, waiting
an additional five years after becoming eligible for citizenship
— would insure that suspension of deportation would be
available in the event the INS sought to deport her. In Peti-
tioner’s circumstances, it was objectively reasonable to wait
the additional five years and to apply for naturalization only
when that time had elapsed. The fact that Petitioner waited
those five years reinforces our conclusion that Petitioner’s
submitting her application disclosing the criminal convictions
for which she was deportable was an act of reasonable reli-
ance on the availability of suspension of deportation. She can
thus “ ‘plausibly claim that [she] would have acted . . . differ-
ently if [she] had known’ about the elimination of
§ [244(a)(2)] relief,” for which she had become eligible by the
time she submitted her naturalization application. Kelava, 434
F.3d at 1124 (quoting Armendariz-Montoya, 291 F.3d at
1121).
In so concluding, we note that Petitioner’s claim does not
suffer from the defects we have previously identified in other
aliens’ arguments against retroactive application of IIRIRA
under step two of Landgraf. First, because of Petitioner’s
objectively reasonable reliance on the availability of suspen-
sion of deportation, her claim is unlike the claims we have
rejected for lack of objectively reasonable reliance. See, e.g.,
HERNANDEZ DE ANDERSON v. GONZALES 9499
Saravia-Paguada, 2007 WL 1462240, at *8-10 (no reason-
able reliance in committing the crime for which petitioner was
removable); Kelava, 434 F.3d at 1125 (no reasonable reliance
in engaging in terrorist activity); Armendariz-Montoya, 291
F.3d at 1121-22 (no reasonable reliance in committing crime
or proceeding to trial rather than entering guilty plea).
[14] Second, Petitioner did not have fair notice that a
change in the law would deprive her of the right to apply for
suspension of deportation if the INS initiated deportation pro-
ceedings against her in response to her application for natural-
ization. Petitioner applied for naturalization on August 2,
1995, more than a year before the passage of IIRIRA, and an
additional six months before IIRIRA took effect. Cf. St. Cyr,
533 U.S. at 314 (noting that St. Cyr entered his plea agree-
ment in March 1996). Petitioner is thus not among those
aliens who, following IIRIRA’s passage and with notice of its
effective date, applied for various forms of relief from depor-
tation in the hope of taking advantage of certain more favor-
able pre-IIRIRA provisions before April 1, 1997. See, e.g.,
Ramirez-Zavala v. Ashcroft, 336 F.3d 872, 873-74 (9th Cir.
2003) (alien’s action after IIRIRA’s passage but before its
effective date); Vasquez-Zavala v. Ashcroft, 324 F.3d 1105,
1106 (9th Cir. 2003) (same); Jimenez-Angeles, 291 F.3d at
597 (same). Unlike those aliens, Petitioner had no notice, at
the time she acted, that suspension of deportation would be
repealed, thus leaving her without any possible relief from
deportation.
Third, unlike aliens who were present illegally in the
United States at the time of their ostensible “settled expecta-
tion,” Petitioner was a lawful permanent resident at the time
of her application and had held that status for twenty-two
years. Even where there are grounds to seek deportation or
removal, a lawful permanent resident is lawfully present in
the United States until a final deportation or removal order is
entered. See 8 C.F.R. § 1.1(p); United States v. Reyna-Tapia,
328 F.3d 1114, 1117 (9th Cir. 2003) (en banc). In 1995, the
9500 HERNANDEZ DE ANDERSON v. GONZALES
INS had not sought to deport Petitioner for her criminal con-
victions; nor had the INS even contacted her. Petitioner’s nat-
uralization application was not a plea for mercy by someone
illegally present in this country. Rather, it was an application
for citizenship submitted by a lawful permanent resident who
could reasonably rely on the law in existence at the time pro-
viding that she was eligible to be considered for both natural-
ization and suspension of deportation. Compare St. Cyr, 533
U.S. at 293 (lawful permanent resident), with Ramirez-
Zavala, 336 F.3d at 873-74 (illegal alien), Vasquez-Zavala,
324 F.3d at 1106 (same), and Jimenez-Angeles, 291 F.3d at
602 (same).
Finally, at the time of her application in 1995, Petitioner
was eligible to apply for suspension of deportation. She had
accrued the necessary ten years of continuous presence and
had reason to believe that she could demonstrate good moral
character throughout that period as required for relief under
former INA § 244(a)(2). Petitioner is thus unlike those aliens
whose Landgraf claims failed because they were never eligi-
ble for relief before the passage of IIRIRA, and thus had no
claim to a pre-IIRIRA reliance interest in the relief. See, e.g.,
Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1327-28 (9th
Cir. 2006) (finding no impermissible retroactive effect in the
denial of pre-IIRIRA relief because the petitioner had not
been in the United States long enough to qualify for the relief
at the time of IIRIRA’s passage).
[15] We therefore hold that applying IIRIRA’s repeal of
suspension of deportation to Petitioner “would have a retroac-
tive consequence in the disfavored sense of ‘affecting sub-
stantive rights, liabilities, or duties [on the basis of] conduct
arising before [its] enactment.’ ” Fernandez-Vargas, 126
S. Ct. at 2428 (quoting Landgraf, 511 U.S. at 278 (alterations
in Fernandez-Vargas)). To deny Petitioner the opportunity to
apply for suspension of deportation would be inconsistent
with the “[e]lementary considerations of fairness dictat[ing]
that individuals should have an opportunity to know what the
HERNANDEZ DE ANDERSON v. GONZALES 9501
law is and to conform their conduct accordingly.” Landgraf,
511 U.S. at 265.
Conclusion
[16] The BIA did not err in affirming the IJ’s refusal to ter-
minate Petitioner’s removal proceedings under 8 U.S.C.
§ 1239.2(f). However, the BIA erred in holding that IIRIRA’s
repeal of suspension of deportation was not impermissibly
retroactive as applied to Petitioner. We therefore grant the
petition and remand to the BIA for further proceedings con-
sistent with this opinion.
Petition GRANTED and REMANDED.
TALLMAN, Circuit Judge, concurring in part and dissenting
in part:
Today the majority untethers our retroactivity jurisprudence
in the criminal alien context from the mooring the Supreme
Court established in INS v. St. Cyr, 533 U.S. 289 (2001).
Because Congress has chosen to reduce immigration benefits
available to aliens convicted of aggravated felonies, and the
Supreme Court has given us the analytical guidance to evalu-
ate the constitutional claims of those like petitioner who were
convicted by juries, I would hold that Hernandez de Anderson
has failed to establish a cognizable reliance interest sufficient
to invalidate retroactive application of IIRIRA’s cancellation
of removal provision. I respectfully dissent.1
1
I concur in the majority’s conclusion that the BIA did not err in affirm-
ing the IJ’s refusal to terminate Hernandez de Anderson’s removal pro-
ceedings under 8 C.F.R. § 1239.2(f).
9502 HERNANDEZ DE ANDERSON v. GONZALES
I
By shifting the focus away from the quid pro quo exchange
inherent in a plea bargain—which was the lynchpin of the
Supreme Court’s analysis in St. Cyr—the majority crafts a
holding that conflicts with our retroactivity jurisprudence in
the criminal alien context. We have never before invalidated
the retroactive application of IIRIRA where an alien made the
conscious decision to proceed to trial. Indeed, where other cir-
cuits have been content to look elsewhere to establish reason-
able reliance, our court has made clear that the retroactivity
analysis, at least in the criminal alien context, begins and ends
with whether the alien accepted a guilty plea in reliance on
then-existing discretionary relief available at the time the
decision to plead guilty was made.
In Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121
(9th Cir. 2002), we held that an alien who chooses to go to
trial “cannot plausibly claim that [he] would have acted any
differently if [he] had known” about the elimination of
§ 212(c) relief. “Outside of the plea bargain context, however,
we have declined to invalidate retroactive elimination of
§ 212(c) relief.” Saravia-Paguada v. Gonzales, 488 F.3d
1122, 1131 (9th Cir. 2007). Indeed, in Saravia-Paguada, we
made clear that Armendariz-Montoya “reaffirmed a narrow
reading of St. Cyr and excluded categorically claims for
§ 212(c) relief outside the guilty plea context.” Id. (emphasis
added); see also Kelava v. Gonzales, 434 F.3d 1120, 1122-24
(9th Cir. 2006) (affirming Armendariz-Montoya’s reasoning
and emphasizing that the St. Cyr Court was “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 appli-
cation of IIRIRA § 304(b)” (citing INS v. St. Cyr, 533 U.S.
289, 323-24 (2001))).2
2
That this case involves suspension of deportation under § 244(a)(2), as
opposed to waiver of inadmissibility under § 212(c), makes no difference.
HERNANDEZ DE ANDERSON v. GONZALES 9503
Thus, to the extent that the opinion relies on extracircuit
case law for a post-jury-conviction retroactivity analysis, it
conflicts with our court’s precedent. Moreover, it makes no
difference that Hernandez de Anderson is a lawful permanent
resident—as opposed to an alien residing illegally in the
United States. Our language in Armendariz-Montoya and
Saravia-Paguada was absolute; we carved out no exceptions
based on the status of the particular alien. We stated simply
that if an alien proceeded to trial, the retroactivity inquiry was
at an end. In this case, Hernandez de Anderson took her
chances at trial to defend against a murder charge, and she lost.3
Congress has declared that suspension of deportation is no
longer available to this class of aliens. I would go no further.
II
Even if our precedents in this area of law permitted invali-
dation of IIRIRA retroactivity outside the plea bargain con-
text, I would decline to do so on the grounds relied upon by
the majority. The majority concludes that Hernandez de
Anderson has established reasonable reliance sufficient to
invalidate the retroactive application of IIRIRA’s cancellation
The retroactivity principles are the same. Each is a form of discretionary
relief altered by the enactment of IIRIRA and AEDPA. The majority
would be hard pressed to find a meaningful distinction without undermin-
ing its own analysis, which relies heavily on multiple § 212(c) cases.
3
The California Court of Appeal affirmed Hernandez de Anderson’s
conviction on appeal. In Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006)
—a case cited by the majority to support its conclusion that an alien need
only establish objective reliance—the Tenth Circuit invalidated retroactive
application of IIRIRA to the class of “[a]liens who gave up their right to
appeal their aggravated felony conviction when a successful appeal could
have deprived them of § 212(c) eligibility.” Id. at 1199. Because Her-
nandez de Anderson actually appealed her conviction, the Hem class is of
no assistance to her. Indeed, in its haste to declare—for the first time in
this circuit—that an alien need not show subjective reliance, the majority
puts the cart before the horse. One must first establish a reasonable reli-
ance interest before addressing whether that reliance must be subjective or
objective.
9504 HERNANDEZ DE ANDERSON v. GONZALES
of removal provision based on (1) her decision to wait five
years before filing her naturalization application and (2) the
fact that at the time of her filing she was eligible for suspen-
sion of deportation under pre-IIRIRA law. Op. at 9497-9501.
Because neither rationale, on its own, suffices to establish rea-
sonable reliance under our case law, cobbling them together
does the majority no greater good. I address each ground in
turn.
A
The majority makes much of Hernandez de Anderson’s
decision to wait to file her naturalization application until
1995 despite the fact that she was eligible for naturalization
as early as 1990. The problem with this reliance argument is
that at the time that Hernandez de Anderson purportedly
chose to forgo filing her naturalization application, she was
not eligible for suspension of deportation. Section 244(a)(2)
was still on the books in 1990, but that made no difference in
Hernandez de Anderson’s situation. Thus, to the extent that
she may have relied on its future availability when she
decided to wait, she had no other choice. How did she rely to
her detriment? In other words, what was available to her in
1990 that she gave up by waiting another five years? I can
think of nothing.
Hernandez de Anderson’s situation therefore is different
from the guilty plea context because there the decision to
enter a guilty plea and accept conviction results in detrimental
consequences under subsequently enacted law. St. Cyr, 533
U.S. at 321-22. When we invalidate retroactive application of
new laws, we ask, “Would the alien have accepted a guilty
plea if he had known that his conviction would bar him cate-
gorically from certain discretionary relief in the future?” The
answer typically is no, and we allow him to pursue relief
under the old law. Here we ask, “Would Hernandez de Ander-
son have waited to file her naturalization application if she
had known that suspension of deportation would not be avail-
HERNANDEZ DE ANDERSON v. GONZALES 9505
able to her in the future?” Whether the answer is yes or no
makes no difference because her decision not to file in 1990
resulted in no detriment. See Kelava, 434 F.3d at 1124 (noting
the Supreme Court’s emphasis on the petitioner’s detrimental
reliance in St. Cyr). For all practical purposes, she could have
done nothing differently; her decision merely maintained the
status quo of ineligibility.
The majority suggest that by filing her application Her-
nandez de Anderson risked awakening the sleeping bureau-
cratic giant who might then resolve to initiate deportation
proceedings against her. But the INS could have done so at
any time following her release from prison. That was a risk
she always faced and one she could do absolutely nothing
about other than pray that the knock on her door would never
come.
As a result, Hernandez de Anderson’s situation is also fun-
damentally different from those situations in which other cir-
cuits have invalidated retroactive application of AEDPA
based on a delay in filing a § 212(c) application. See, e.g.,
Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206-10 &
n.11 (5th Cir. 2007) (invalidating retroactive application of
AEDPA where an alien was eligible for § 212(c) relief but
deliberately chose to postpone filing in order to develop a
stronger application); Wilson v. Gonzales, 471 F.3d 111, 113
(2d Cir. 2006) (same); Restropo v. McElroy, 369 F.3d 627,
637 (2d Cir. 2004) (same).4 In Restropo v. McElroy, for exam-
ple, the Second Circuit reasoned that “it is certainly plausible
that aliens who decided to forgo affirmatively filing a 212(c)
application would have acted differently if they had foreseen
the AEDPA’s enactment.” Id. Restropo and its progeny actu-
ally undermine the majority’s holding because in each case
4
Restropo, Wilson, and Carranza-De Salinas each involved aliens who
had been convicted after a jury trial—as opposed to a guilty plea. As a
result, the petitioners were forced to identify a reliance interest separate
from the quid pro quo exchange underlying St. Cyr.
9506 HERNANDEZ DE ANDERSON v. GONZALES
the alien’s decision affected the availability of relief for which
he or she was already eligible. See Carranza-De Salinas, 477
F.3d at 202 (“[Petitioner] claims she did not immediately
apply for § 212(c) discretionary relief after her [jury] convic-
tion because she intended to apply . . . [when] she would be
able to show a more extensive record of rehabilitation and
community ties.”); Wilson, 471 F.3d at 122 (noting that even
though Wilson “could have filed an affirmative § 212(c)
application,” the record was unclear as to whether “he ever
intended to do so”); Restropo, 369 F.3d at 637 (“Many [aliens
in petitioner’s position] might well have chosen affirmatively
to file the ‘weaker,’ but still valid, application. To the extent
that aliens like Petitioner detrimentally adapted their positions
in reliance on their expectation of continued eligibility for
212(c) relief, the factors considered in [a previous Second
Circuit case] appear to weigh against proscribing such relief
retroactively.” (emphasis added)). It may well be that the
aliens in each of these cases would not have waited to file
applications for § 212(c) relief if they had known that Con-
gress would strip their eligibility for that form of relief.
Here, at the time of her alleged decision to wait, Hernandez
de Anderson had no chance of relief via suspension of depor-
tation. Had she been eligible for suspension of deportation in
1990 and made an analogous decision to strengthen her appli-
cation, we might need to decide whether to extend our court’s
retroactivity analysis beyond the plea agreement context. But
that is not the case before us.5 The majority’s emphasis on
5
Hernandez de Anderson’s decision to wait actually can be viewed as
favorable, since she spent another five years free of adverse immigration
proceedings. I find puzzling the opinion’s assertion that Hernandez de
Anderson somehow would have been significantly less likely to have
brought her criminal convictions to the INS’s attention by applying for
naturalization if she had known that suspension of deportation was not
available. The same can be said for any alien who seeks naturalization. At
some point, they must come forward and reveal their criminal history. If
naturalization was her goal, Hernandez de Anderson had no choice other
than to reveal herself to INS. I find it difficult to invalidate retroactive
HERNANDEZ DE ANDERSON v. GONZALES 9507
Hernandez de Anderson’s choice to wait five years before
applying for naturalization is therefore little more than a red
herring.
B
Removing from the retroactivity analysis Hernandez de
Anderson’s decision to wait five years before filing her natu-
ralization application, the majority is left with nothing more
than the act of her filing. While it is true that the law in effect
at the time of her filing permitted discretionary relief in the
form of suspension of deportation, we have held previously
that an alien cannot establish impermissible retroactivity
based merely on the decision to file. For example, in Vasquez-
Zavala v. Ashcroft, 324 F.3d 1105 (9th Cir. 2003), we held
that an illegal alien had no settled expectation that the former
INS would initiate pre-IIRIRA deportation proceedings (as
opposed to post-IIRIRA removal proceedings) following the
denial of his asylum application based solely on the fact that
he submitted his application prior to IIRIRA’s effective date.
Id. at 1108. We reasoned that “even if [Vasquez-Zavala]
assumed that the application would be denied, any expecta-
tion that an INS action would thereafter commence could not
support a sufficient expectation as to when it would com-
mence.” Id.; see also Jimenez-Angeles v. Ashcroft, 291 F.3d
594, 600 (9th Cir. 2002) (holding that IIRIRA applied to an
alien who presented herself to the INS before IIRIRA’s effec-
tive date in the hope of invoking pre-IIRIRA law). We reiter-
ated the same logic in Lopez-Urenda v. Ashcroft, 345 F.3d
788, 794 (9th Cir. 2003), which also involved an alien who
filed an asylum application before IIRIRA’s enactment:
application of the cancellation of removal provision where the only option
that an applicant passes up—in order to seek naturalization—is to remain
in the United States as an anonymous but deportable alien. That is not det-
rimental reliance. It is the hope that INS will be too busy with others to
pay attention to Hernandez de Anderson.
9508 HERNANDEZ DE ANDERSON v. GONZALES
Proceedings could have begun several months after
[Lopez-Urenda] filed his application, in which case
suspension of deportation would have remained a
viable option; or they could have begun years later,
as they did, at a time when the law had undergone
significant change. That Lopez-Urenda did not know
of the specific change—the enactment of IIRIRA
and its permanent rules abolishing suspension of
deportation—does not mean that he had a settled
expectation that proceedings would commence
before any such change took place.
Id.
In declining to invalidate the retroactive application of
IIRIRA in Lopez-Urenda, we highlighted fundamental differ-
ences between the alien’s situation in that case and the plea
bargain context in St. Cyr:
The concession of alienage in this case is not compa-
rable to the numerous constitutional rights the peti-
tioner in St. Cyr relinquished, including the right to
trial by jury and all of its attendant safeguards. Simi-
larly, any benefit the government may have gained
in this case—such as the resources it saved in locat-
ing Lopez-Urenda and locating evidence to support
its proceedings—are not so weighty as to create a
settled expectation that suspension of deportation
would remain available in exchange.
Id. at 796.
The same reasoning applies to Hernandez de Anderson; she
simply cannot establish the quid pro quo recognized in St.
Cyr. Invalidating retroactivity based merely on the act of fil-
ing prior to IIRIRA’s effective date conflicts with our reason-
ing in Lopez-Urenda, Jimenez-Angeles, and Vasquez-Zavala.6
6
Notably, our reasoning in these cases did not rely on the petitioners’
status as illegal aliens. As such, Hernandez de Anderson’s status as a law-
HERNANDEZ DE ANDERSON v. GONZALES 9509
More importantly, holding that an alien can establish reason-
able reliance based on nothing more than the date of filing
would vitiate IIRIRA (and AEDPA) retroactivity altogether,
allowing any alien who filed his application prior to the stat-
utes’ effective dates to claim an impermissible effect and seek
protection from laws Congress repealed over ten years ago.
III
Perhaps swayed by the sympathetic facts of this case, the
majority has stretched our retroactivity doctrine in the crimi-
nal alien context beyond the bounds set by our precedent. I
agree that Hernandez de Anderson’s situation is certainly
sympathetic. But one wonders whether the majority would
have been so eager to rewrite our jurisprudence on less heart-
wrenching facts. And while I share the majority’s sympathy,
I cannot join an opinion that grants relief at the expense of
settled law. The majority opinion conflicts with our prior
holdings restricting the retroactivity analysis in the criminal
ful permanent resident who filed a naturalization application (as opposed
to an asylum application) does not undermine the binding force of these
precedents. If anything, the fact that she filed a naturalization application
makes Hernandez de Anderson’s reliance argument even weaker than
those put forth in our earlier cases, where the INS was under an affirma-
tive obligation to initiate removal proceedings upon the denial of an asy-
lum application. See, e.g., Vasquez-Zavala, 324 F.3d at 1108 (“Petitioners
observe that asylum is the only alien application that necessarily results
in an INS action in the event it is denied. Unlike other alien applications,
where, upon denial, the INS retains discretion to formally charge the alien,
in asylum cases, the INS must refer the alien to deportation (pre-IIRIRA)
or removal proceedings (IIRIRA) once the application is denied.”). Her-
nandez de Anderson’s argument that she should have the benefit of pre-
IIRIRA suspension of deportation therefore rests on two separate assump-
tions: (1) the former INS’s denial of her naturalization application and (2)
its discretionary decision to initiate deportation/removal proceedings. Cf.
id. (discounting petitioners’ argument where it was based on the presump-
tion that the application for discretionary relief—i.e., asylum—would be
denied). I cannot support such an attenuated concept of “reasonable” reli-
ance.
9510 HERNANDEZ DE ANDERSON v. GONZALES
immigrant context to the quid pro quo exchange inherent in
plea bargains where reasonable reliance can be shown.
Because the majority’s reasoning relies on inadequate
grounds to establish the necessary reliance interest, I respect-
fully dissent.7
7
Because I do not agree that Hernandez de Anderson has established a
sufficient reliance interest, I would not reach the question of whether an
alien must show objective or subjective reliance.