Salazar-Regino, et al v. Trominski, et al

United States Court of Appeals
Fifth Circuit
F I L E D
June 30, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-41492
_______________
LAURA ESTELA SALAZAR-REGINO,
Petitioner-Appellant,
VERSUS
E.M. TROMINSKI,
DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE;
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
* * * * * * * * * * * * * * *
TEODULO CANTU-DELGADILLO,
Petitioner-Appellant,
VERSUS
E.M. TROMINSKI,
DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE;
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
* * * * * * * * * * * * * * *

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2
DANIEL CARRIZALES-PEREZ,
Petitioner-Appellant,
VERSUS
AARON CABRERA,
ACTING DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, ACTING DIRECTOR HLG/DO;
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
* * * * * * * * * * * * * * *
MANUEL SANDOVAL-HERRERA,
Petitioner-Appellant,
AARON CABRERA,
ACTING DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE;
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
* * * * * * * * * * * * * * *

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3
RAUL HERNANDEZ PANTOJA,
Petitioner-Appellant,
VERSUS
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES;
CHARLES ARENDALE,
ACTING DIRECTOR;
Respondents-Appellees.
* * * * * * * * * * * * * * *
JOSE MARTIN OVIEDO-SIFUENTES,
Petitioner-Appellant,
VERSUS
CHARLES ARENDALE,
ACTING DIRECTOR;
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
* * * * * * * * * * * * * * *

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4
CESAR LUCIO,
Petitioner-Appellant,
CHARLES ARENDALE,
ACTING DIRECTOR;
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
* * * * * * * * * * * * * * *
PRAXEDIS RODRIGUEZ,
Petitioner-Appellant,
VERSUS
AARON CABRERA;
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
* * * * * * * * * * * * * * *
NOHEMI RANGEL-RIVERA,
Petitioner-Appellant,
VERSUS
AARON CABRERA;
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.

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5
______________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________
Before JOLLY, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The petitioners are lawful permanent resi-
dent aliens who pleaded guilty to marihuana
possession offenses and received deferred
adjudication in state court. Based on their
guilty pleas, the government successfully
sought their removal from the United States.
Although at the time of their guilty pleas the
Board of Immigration Appeals (“BIA”) inter-
preted the relevant immigration statutes as not
requiring removal for this type of deferred
adjudication (or at least as allowing for discre-
tionary relief from removal), the petitioners
were found to be removable and ineligible for
discretionary relief based on precedent that
developed after entry of their pleas. They
filed for habeas corpus relief, which was de-
nied by the district court. Finding no error, we
affirm.
I.
Laura Estela Salazar-Regino and Nohemi
Rangel-Rivera are lawful permanent residents
who filed habeas petitions in federal district
court regarding findings that they were remov-
able and ineligible for discretionary relief from
removal; the habeas petitions were consoli-
dated with seven other similar petitions. The
district court denied the petitions, and all the
petritioners appealed. Salazar-Regino and
Rangel-Rivera’s cases were selected as the
lead cases for briefing and argument. We
examine the facts of each of their cases in turn.
A.
Salazar-Regino pleaded guilty on January 7,
1997, in Texas state court of third-degree-
felony possession of a controlled substance
(intentional and knowing possession of 5 to 50
pounds of marihuana). It was her first of-
fense, and she received deferred adjudication
of guilty and was placed on probation for 10
years. On August 10, 1998, the Immigration
and Naturalization Service (“INS”)1 com-
menced removal proceedings against her on
the grounds that she was (1) an alien who has
been “convicted” of a controlled substance
o ffe n s e p u r s u a n t t o 8 U . S . C .
§ 1227(a)(2)(B)(i),2 and (2) an alien who has
been “convicted” of an “aggravated felony”
1 On March 1, 2003, the INS ceased to exist as
an agency within the Department of Justice, and its
enforcement functions were transferred to the
Department of Homeland Security; the entity is
now known as the Bureau of Immigration and Cus-
toms Enforcement. Because the relevant events
began before the reorganization, we continue to
refer to the INS.
2 Title 8 U.S.C. § 1227(a)(2)(B) provides that
“[a]ny alien who at any time after admission has
been convicted of a violation of . . . any law or
regulation of a State [or] the United States relating
to a controlled substance . . . other than a single of-
fense involving possession for one’s own use of 30
grams or less of marijuana, is deportable.”

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6
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii),
namely a “drug trafficking crime” as defined by
8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C.
§ 924(c).
Salazar-Regino denied deportability and
moved to terminate the proceedings, contend-
ing she was not “convicted” for immigration
purposes under the state first-offender excep-
tion created in Matter of Manrique, 21 I. &
N. Dec. 58 (BIA 1995), which held that a first-
time state drug offense of simple possession
should not be considered a conviction for
immigration purposes if the alien would have
hypothetically been eligible for treatment under
the Federal First Offender Act (“FFOA”)3 had
he been prosecuted under federal narcotics
laws. The immigration judge (“IJ”) agreed
that Salazar-Regino’s deferred adjudication
was not a “conviction” and concluded that her
crime of drug possession would not be punish-
able as a felony under federal law, and thereby
was not an aggravated felony under Matter of
L-G-, 20 I. & N. Dec. 905 (BIA 1994).
The INS appealed the termination of the re-
moval proceedings, and the BIA reversed,
concluding that Salazar-Regino was deport-
able on either ground. The BIA found that the
deferred adjudication did constitute a “convic-
tion” for immigration purposes under the stat-
utory definition of conviction enacted by Con-
gress in 1996, after Manrique but before Sal-
azar-Regino’s guilty plea.4 The BIA pointed
to its conclusion in Matter of Roldan, 22 I. &
N. Dec. 512 (BIA 1999), that the 1996 statu-
tory definition superseded Manrique. Further-
more, the BIA concluded that Salazar-Regino
was alternatively removable because her state
felony drug-possession crime constituted an
“aggravated felony” under United States v.
Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997)
(which held that a state felony drug possession
crime constitutes an aggravated felony for fed-
eral sentencing purposes), and United States v.
Hernandez-Avalos, 251 F.3d 505, 508-10 (5th
Cir. 2001) (which extended the definition to
immigration proceedings and explicitly reject-
ed Matter of L-G-). Salazar-Regino filed a ha-
beas petition in federal district court, challeng-
ing the BIA’s conclusion. The denial of that
petition is the subject of the instant appeal.
B.
Rangel-Rivera pleaded guilty on March 9,
1999, in Texas state court to felony possession
of marihuana (between 50 and 2000 pounds)
and was granted deferred adjudication. The
INS placed her in removal proceedings and
charged her with being deportable as an alien
convicted of a controlled substances offense.
She conceded that she was deportable as
charged5 and applied for discretionary relief
pursuant to 8 U.S.C. § 1229b.6 On May 11,
1999, the IJ found that she deserved relief as a
matter of discretion.
3 18 U.S.C. § 3607(a), (b).
4 See 8 U.S.C. § 1101(a)(48) (defining a con-
viction as, inter alia and with no stated excep-
tions,, a “plea of guilty” and some form of “re-
straint on liberty”).
5 Rangel-Rivera pleaded guilty after Rold-
an was issued, so she is foreclosed from arguing
that that the decision was impermissibly applied to
her retroactively in defining the term “conviction”
for immigration purposes.
6 Title 8 U.S.C. § 1229b(a)(1) states that can-
cellation of removal is available at the discretion of
the Attorney General if the alien “(1) has been an
alien lawfully admitted for permanent residence for
not less than 5 years, (2) has resided in the United
States continuously for 7 years after having been
admitted in any status, and (3) has not been con-
victed of any aggravated felony.”

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7
The INS appealed, and the BIA reversed,
concluding that based on intervening precedent
since the time of the prior decision, Rangel-Ri-
vera’s crime of felony drug possession was an
aggravated felony under Matter of Yanez-
Garcia, 23 I. & N. Dec. 390 (BIA 2002),
which adopted the construction set forth in
Hernandez-Avalos. Because the BIA found
that Rangel-Rivera had committed an aggra-
vated felony, it decided that the IJ had abused
his discretion by granting discretionary relief.
Rangel-Rivera filed a habeas petition in federal
district court challenging the BIA’s conclu-
sion. Its denial is the subject of the instant
appeal.
II.
We review questions of law as to jurisdic-
tion and merits de novo. See Requena-Rodri-
guez v. Pasquarell, 190 F.3d 299, 302 (5th
Cir. 1999). We review the INS’s construc-
tions of the law it administers deferentially, un-
der the test established by Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). See INS v. Aguir-
re-Aguirre, 526 U.S. 415, 424 (1999).
On reviewing an Agency’s construction of
a statute it administers, we must perform
the well-known two-step inquiry: First, al-
ways, is the question whether Congress has
directly spoken to the precise question at
issue. If the intent of Congress is clear,
that is the end of the matter; for the court,
as well as the agency, must give effect to
the unambiguously expressed intent of
Congress. If, however, the court deter-
mines Congress has not directly addressed
the precise question at issue, the court does
not simply impose its own construction on
the statute, as would be necessary in the ab-
sence of an administrative interpretation.
Rather, if the statute is silent or ambiguous
with respect to the specific issue, the ques-
tion for the court is whether the agency’s
answer is based on a permissible construc-
tion of the statute.
Moosa v. INS, 171 F.3d 994, 1005 (5th Cir.
1999) (citing Chevron, 467 U.S. at 842-43).
III.
The INS argues that the district court erred
when it held that it (the district court) had jur-
isdiction over Salazar-Regino’s petition. The
essence of the INS’s argument is that we, as
the court of appeals, had jurisdiction to review
his appeal from the BIA’s decision directly,
and his habeas petition should therefore have
been dismissed because he failed to exhaust his
other available remedies before filing that
petition.7
A.
In resolving this jurisdictional question, the
first issue to address is whether we would have
had jurisdiction to review Salazar-Regino’s
claims on direct appeal. As a threshold matter,
8 U.S.C. § 1252(a)SSthe statute governing
review of final orders of removalSSstates that
review of such orders shall take place in the
courts of appeals by means of petitions for
direct review. Section 1252(a)(2)(C), how-
ever, eliminates jurisdiction to review final or-
ders of removal involving aliens who are de-
portable for conviction of certain crimes, in-
cluding controlled substances offenses and ag-
gravated felonies.8
7 The INS does not aver that the district court
lacked habeas jurisdiction over Rangel-Rivera’s
petition, because she conceded that she was re-
movable and only challenges her ineligibility for
discretionary cancellation of removal.
8 Section 1252(a)(2)(C) reads as follows:
(continued...)

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8
Despite this jurisdictional bar, it is well es-
tablished that we retain jurisdiction to deter-
mine our own jurisdiction.9 Specifically,
[w]hen confronted with a petition for re-
view from a criminal alien, a court of ap-
peals must make three specific inquiries
before dismissing the petition as barred §
1252(a)(2)(C): (1) whether specific condi-
tions act to bar jurisdiction over the petition
to review; (2) whether the conditions that
bar jurisdictionSSfor example as in this
case, deportation for an aggravated fel-
onySShave been ‘constitutionally applied;’
and (3) if the jurisdictional bar applies,
whether the remaining quantum of review
satisfies the Constitution.
Garcia, 234 F.3d at 259. The issues raised by
Salazar-Regino appear to fall squarely into
what we have previously considered to be part
of the “jurisdictional inquiry;” she challenges
whether she was “convicted” for the purposes
of removal, and she brings constitutional
challenges (retroactivity, due process, and
equal protection) to whether the conditions
that bar jurisdiction (whether her deferred
adjudication was a “conviction” and whether
her offense was an “aggravated felony”)
apply.10
Finally, Salazar-Regino notes that a couple
of her claims could not have been reviewed by
us directlySSnamely, her challenge to her in-
eligibility for discretionary relief and her inter-
national law argument. She is correct, for
these questions do not address the jurisdic-
tional inquiry as we framed it in Garcia, id.
The issues that we do have jurisdiction to
consider on direct review, however, are
threshold issues that must be considered be-
fore reaching Salazar-Regino’s ineligibility for
discretionary relief. As we explained in Lee,
2005 U.S. App. LEXIS 9946, at *19, the
proper procedure in such a situation is first to
file a petition for direct review. If we then de-
termine that the jurisdiction-stripping statute,
8(...continued)
Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such
title, and except as provided in subparagraph
(D), no court shall have jurisdiction to review
any final order of removal against an alien who
is removable by reason of having committed a
criminal offense covered in section 1181(a)(2)
or 1227(a)(2)(A)(iii), (B), (C), or (D) of this
title, or any offense covered by section 1227(a)-
(2)(A)(ii) of this title for which both predicate
offenses are, without regard to their date of
commission, otherwise covered by section
1227(a)(2)(A)(i) of this title.”
8 U.S.C. § 1252(a)(2)(C).
9 See Lee v. Ashcroft, 2005 U.S. App. LEXIS
9946, at *9-*10 (5th Cir. May 31, 2005); see also
Flores-Garza v. INS, 328 F.3d 797, 802 (5th Cir.
2003); Garcia v. Reno, 234 F.3d 257, 259 (5th
Cir. 2000).
10 Salazar-Regino claims this court does not
have jurisdiction to entertain constitutional chal-
lenges where § 1252(a)(2)(c) applies, but the cases
she cites for this propositionSSCalcano-Martinez
v. INS, 533 U.S. 348 (2001), and Flores-Garza,
328 F.3d at 802-03SSare inapposite. The Court in
Calcano-Martinez declined to consider this issue,
because it was not relevant to the disposition of the
petitions under review. See Calcano-Martinez,
533 U.S. at 350 n.2. Similarly, Flores-Garza did
not decide the issue, because there we found that it
was undisputed that the alien was removable by
another reason that independently triggered the
jurisdiction-stripping provision. See Flores-Garza,
328 F.3d at 802.

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9
§ 1252(a)(2)(C), does not apply (because, for
example, we decide that the offense was not
an aggravated felony), then the alien is not
removable, and our inquiry ends. See id. If,
on the other hand, we determine that the alien
is removable and the jurisdiction-stripping
statute applies, we dismiss the case, and the
alien, lacking another avenue of review, can
proceed in habeas. See id. In sum, we agree
with the government’s contention that we had
jurisdiction to entertain the threshold issues in
Salazar-Regino’s appeal on direct review.
B.
Because there was jurisdiction for us to
hear Salazar-Regino’s appeal on direct review,
the government urges us to dismiss her habeas
petition for failure to exhaust available judicial
remedies.11 The district court correctly noted
that at the time when Salazar-Regino filed her
habeas petition in the district court, there was
debate among the circuits as to whether the
requirement of exhaustion of available judicial
remedies still applies in the wake of INS v. St.
Cyr, 533 U.S. 289 (2001).12 Several courts
have held that the availability of an alternative
forum of review does not conclusively deter-
mine, in the absence of plain Congressional
intent, that habeas jurisdiction is no longer
available.13 Other circuits have ruled the other
way, holding that there is no habeas jurisdic-
tion to review an alien’s removal order where
he failed to exhaust available judicial
remedies.14
Although we had not ruled on this precise
jurisdictional issue at the time the district court
considered Salazar-Regino’s habeas petition,
we have since adopted the position that the
exhaustion requirement still applies post-St.
Cyr. See Lee v. Gonzales, 2005 U.S. App.
LEXIS 9946 (5th Cir. May 31, 2005). Be-
11 See Santos v. Reno, 228 F.3d 591, 597 (5th
Cir. 2000) (holding that habeas is unavailable
where the court of appeals could have heard the
claims presented through another avenue of relief);
Rivera-Sanchez v. Reno, 198 F.3d 545, 547 (5th
Cir. 1999) (stating that “habeas jurisdiction exists
only where ‘challenges [to deportation orders]
cannot be considered on direct review by the court
of appeals’”); Requena-Rodriguez v. Pasquerell,
190 F.3d 299, 305 (5th Cir. 1999) (stating that
habeas jurisdiction exists to review “statutory and
constitutional challenges if those challenges cannot
be considered on direct review”).
12 Seale v. INS, 323 F.3d 150, 54 (1st Cir.
2003) (concluding that St. Cyr has some ambigu-
ous language such that “[t]he question remains
(continued...)
12(...continued)
open whether the existence of another available ju-
dicial forum to adjudicate the merits of an alien’s
claim overrides the absence of a clear statement by
Congress that it intended to strip the district courts
of their habeas jurisdiction.”)
13 See Liu v. INS, 293 F.3d 36, 40 (2d Cir.
2002) (stating that the forum-availability argument
merely reinforced but did not determine the conclu-
sion that Congress had not plainly repealed habeas
review); see also Chmakov v. Blackman, 266 F.3d
210, 215 (3d Cir. 2001) (concluding that although
the legal questions could have been considered on
direct review, the aliens still could bring a habeas
petition).
14 Lopez v. Heinauer, 332 F.3d 507, 510-11
(8th Cir. 2003) (“Although habeas jurisdiction re-
mains available to deportees who raise questions of
law and who have no other available judicial forum
[citing St. Cyr], the statute here provides an ade-
quate judicial forum, permitting the noncriminal
deportee to file a petition for review in the appro-
priate court of appeals . . . . Lopez filed the wrong
action in the wrong federal court.”); see also Baeta
v. Sonchik, 273 F.3d 1261, 1264 (9th Cir. 2001).

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10
cause we have determined that we could have
reviewed Salazar-Regino’s claims on direct
review, and she failed to pursue that avenue of
relief before filing her habeas petition in the
district court, dismissal of her habeas petition
is appropriate.
Despite this, not all is lost for Salazar-Re-
gino, for we decline to dismiss for lack of jur-
isdiction in this case and may consider the
merits of the issues raised by her habeas peti-
tion, because transfer to this court is appropri-
ate in the interest of justice under 28 U.S.C.
§ 1631,15 which provides:
Whether a civil action is filed in a court as
defined in section of 610 of this title or an
appeal, including a petition for review of
administrative action, is noticed for or filed
with such court and the court finds that
there is a want of jurisdiction, the court
shall, if it is in the interest of justice, trans-
fer such action or appeal to any other such
court in which the action or appeal shall
proceed as if it had been filed in or noticed
for the court to which it is transferred on
the date upon which it was actually filed in
or noticed for the court from which it is
transferred.
28 U.S.C. § 1631. In the immigration context,
that statute authorizes us to transfer these
cases to this court if “(1) we would have been
able to exercise jurisdiction on the date that
they were filed in the district court; (2) the
district court lacked jurisdiction over the cas-
es; and (3) the transfer is in the interests of
justice.” Castro-Cortez v. INS, 239 F.3d
1037, 1046 (9th Cir. 2001).16
The first requirement is met here, because
we would have had jurisdiction to review the
BIA’s disposition of Salazar-Regino’s claims
on direct review, and she filed her habeas
petition in the district court within the thirty-
day deadline for filing for direct review.17
Next, we have decided that the district court
lacked habeas jurisdiction because Salazar-
Regino failed to exhaust her available judicial
remedies. Finally, it would be in the interest of
justice to allow this relief, given that the
caselaw regarding this procedure was admit-
tedly murky post-St. Cyr, and the purpose of
the transfer statute “is to aid litigants who
were confused about the proper forum for
review.” Baeta, 273 F.3d at 1264-65 (internal
citations omitted).
As a final complication, we must deal with
the claims that Salazar-Regino could not have
brought on direct review, namely, her chal-
lenge to her ineligibility for discretionary relief
15 The INS acknowledges that transfer is ap-
propriate under § 1631.
16 Technically, the text of § 1631 authorizes
only the court in which the action was filed (which
would be the district court) to effect a transfer.
This places us in an odd procedural posture, be-
cause it means that if we find that the district court
erred in not transferring the case to us, we would
have to remand with direction to transfer back to us
so that we could consider what is already before
us. See Lopez, 332 F.3d at 511. We agree with
the Eighth and Ninth Circuits that we should
dispense with that formality in the interest of
judicial economy, and consider the case properly
transferred to us where it is otherwise appropriate
under § 1631. See id.; see also In re McCauley,
814 F.2d 1350, 1352 (9th Cir. 1987).
17 See 8 U.S.C. § 1252(b)(1) (stating that a
petition for direct review must be filed no later than
30 days after the date of the final order of re-
moval).

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11
and her international law claim. The district
court pointed to the existence of these claims
to justify retaining jurisdiction over all of
Salazar-Regino’s claims.
The Ninth Circuit has taken a different ap-
proachSSit splits the claims into those that
could have been brought on direct appeal and
those that could not, and treats them differ-
ently.18 This approach is preferable, because it
comports with the procedure recommended in
Lee, 2005 U.S. App. LEXIS 9946, at
*19SSthat an alien first present his threshold
jurisdictional issues on direct appeal, and then
if unsuccessful pursue the remainder of his
claims in habeasSSand because it also prevents
a litigant from manufacturing habeas jurisdic-
tion by bootstrapping, onto his habeas petition,
frivolous issues that could not be reviewed on
direct appeal.
Thus, pursuant to § 1631, we transfer all of
Salazar-Regino’s claims (other than her chal-
lenge to her ineligibility for discretionary relief
and her international law claim) to this court
for consideration on the merits. Because
habeas jurisdiction was proper for the remain-
ing claims, we do not transfer those, and we
consider them on the merits as properly ap-
pealed to us after being denied by the district
court.
IV.
Salazar-Regino challenges the BIA’s deci-
sion that her Texas deferred adjudication con-
stitutes a “conviction” for removal purposes.
Importantly, no definition of “conviction”
existed before 1996. In this context, the BIA
decided Matter of Manrique, 21 I. & N. Dec.
58 (BIA 1995), which held that aliens who re-
ceived deferred adjudication for first-time drug
offenses in state court who would be eligible
for discretionary deferred adjudication under
the FFOA19SShad they been prosecuted under
federal drug lawsSSwould not be considered to
have a “conviction” for immigration removal
purposes. See id. at 64. That decision was
based on a policy consideration that the appro-
priate focus should be on the alien’s conduct,
not the breadth of the state rehabilitative
statute; the BIA decided that leniency should
be extended to aliens to provide them the same
treatment they would have received under
federal law if they had been subject to federal
rather than state prosecution. See id. at 63-64.
In 1996, Congress drafted a concrete defi-
nition of “conviction” for immigration pur-
poses:
The term “conviction” means, with respect
to an alien, a formal judgment of guilt of
the alien entered by a court or, if adjudica-
tion of guilt has been withheld, whereSS
(i) a judge or jury has found the alien
guilty or the alien has entered a plea of
guilty or nolo contendere or has admit-
ted sufficient facts to warrant a finding
of guilt, and
(ii) the judge has ordered some form of
punishment, penalty, or restraint on the
alien’s liberty to be imposed.
18 Cf. Baeta, 273 F.3d at 1264 (“Under the
circumstances presented, transfer of the portion of
the habeas petition [that could have been raised on
direct review] to this Court is appropriate.” (em-
phasis added)).
19 Under the FFOA, a successfully completed
deferred adjudication could not be considered “a
conviction for the purpose of a disqualification or
a disability imposed by law upon conviction of a
crime, or for any other purpose.” 18 U.S.C.
§ 3607(b).

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12
8 U.S.C. § 1101(a)(48). In Matter of Roldan,
22 I. & N. Dec. 512, 518 (BIA 1999), the BIA
determined that this new definition abrogated
Manrique, noting that Manrique and the deci-
sions it relied on were decided “in the absence
of any indication from Congress as to whether
a state rehabilitative action should be given any
effect in immigration proceedings.” Roldan,
22 I. & N. Dec. at 526. The BIA observed
that the plain language of § 1101(a)(48) dic-
tated that
a state action that purports to abrogate
what would otherwise be considered a
conviction, as the result of a state rehabili-
tative statute, rather than as a result of a
procedure that vacates a conviction on the
merits or on grounds relating to a statutory
or constitutional violation, has no effect in
determining whether an alien has been
convicted for immigration purposes.
Id. at 527. The BIA assumed that Congress
was aware of its administrative exception for
deportability that was created in Manrique but
noted that Congress had failed to provide any
exceptions that would allow the Manrique
exception to survive. See id.
Mainly by citing and crediting the argu-
ments made in the Roldan dissents, Salazar-
Regino argues that Roldan incorrectly con-
cluded that § 1101(a)(48) overruled Man-
rique. As the district court correctly found,
however, that question is foreclosed by Moosa
v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999),
which held that “[c]onsidering only the text of
§ 322(a), a Texas deferred adjudication, see
supra note 1, is a ‘conviction.’”.20 Exercising
Chevron deference, we cannot say that the
BIA’s interpretation of the statute it is charged
with administering was an impermissible con-
struction in light of our binding precedent in
Moosa, in which we found this construction to
be dictated by the text of the statute. See id.
at 1005.
V.
Salazar-Regino and Rangel-Rivera claim
that the BIA erroneously applied our construc-
tion of “aggravated felony” expressed in Unit-
ed States v. Hernandez-Avalos, 251 F.3d 505
(5th Cir. 2001). Congress has defined “aggra-
vated felony” for immigration purposes to
mean, inter alia, “a drug trafficking crime (as
defined in section 942(c) of Title 18).”
8 U.S.C. § 1101(a)(43)(B). Section 924(c) of
Title 18, in turn, defines “drug trafficking
crime” to include “any felony punishable under
the Controlled Substances Act (21 U.S.C. §
810 et seq.) . . .” 18 U.S.C. § 924(c)(2);
Hernandez-Avalos, 251 F.3d at 507.
As of 1995, the BIA used a “hypothetical
federal felony” approach in defining aggravat-
ed felonies, which included any state offense
that would be “punishable as a felony” under
the Controlled Substances Act if it were a fed-
eral offense. See id. at 508-09; Matter of L-G-
, 21 I. & N. Dec. 89 (BIA 1995). Based on
this reading, the BIA construed state felony
drug possession as not coming within the
definition of aggravated felony for immigration
20 In Moosa, we found that the first prong of
§ 1101(a)(48) was met because Texas law states
(continued...)
20(...continued)
that a judge may enter a deferred adjudication “af-
ter receiving a plea of guilty or plea of nolo conten-
dere, hearing the evidence, and finding that it sub-
stantiates the defendant’s guilt.” Moosa, 171 F.3d
at 1005 (citing TEX.CODE.CRIM. P. art. 42.12 §
5(a)). Further, the court found the second prong
was met because probation constitutes a punish-
ment and a restraint on liberty. See id. at 1006.

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13
purposes. See Hernandez-Avalos, 251 F.3d at
508-10. Meanwhile, we used a different
interpretation in federal sentencing cases,
construing the definition of aggravated felony
to include offenses that are (1) punishable
under the Controlled Substances Act (whether
as a felony or not) and (2) a felony in the law
of the convicting jurisdiction. This led to
divergent results. See id. at 508 (citing United
States v. Hinojosa-Lopez, 130 F.3d 691, 694
(5th Cir. 1997)).
In Hernandez-Avalos, id., we resolved this
discrepancy by extending to the immigration
context the definition of “aggravated felony”
as established by Hinojosa-Lopez. We decided
that the plain language of the statutes “indi-
cate[s] that Congress made a deliberate policy
decision to include as an ‘aggravated felony’ a
drug crime that is a felony under state law but
only as a misdemeanor under the [Controlled
Substances Act], and that a lack of a uniform
substantive test for determining which drug
offenses qualify as ‘aggravated felonies’ is the
consequence of a deliberate policy choice by
Congress that the BIA and the courts cannot
disregard” (internal citations omitted).
The BIA directly applied Hernandez-Aval-
os in Salazar-Regino’s case, and to the extent
that her argument attacks that case as wrongly
decided, it is foreclosed by our obligation to
follow the prior panel opinion. Similarly, we
cannot say that the BIA was incorrect to apply
Matter of Yanez-Garcia, 23 I. & N. Dec. 390
(BIA 2002) (adopting the Hernandez-Avalos
rule) to Rangel-Rivera, because we are bound
by Hernandez-Avalos, which tells us that the
plain language of the statute dictates the inter-
pretation of “aggravated felony” made by the
BIA in Yanez-Garcia. Accordingly, we cannot
say that the BIA, in light of Chevron defer-
ence, made an unreasonable interpretation of
the statute that it is charged to administer.
VI.
Salazar-Regino and Rangel-Rivera claim
that their due process rights were violated by
the retroactive application of Roldan and Her-
nandez-Avalos to them, because they pleaded
guilty before those rulings were made. As
correctly noted by the district court, the retro-
active application of judicial decisions is a
longstanding maxim. “The general principle
that statutes operate prospectively and judicial
decisions apply retroactively had been fol-
lowed by the common law and the Supreme
Court’s decisions ‘for near a thousand years.’”
Hulin v. Fibreboard Corp., 178 F.3d 316, 329
(5th Cir. 1999) (quoting Kuhn v. Fairmont
Coal Co., 215 U.S. 349, 372 (1910) (Holmes,
J., dissenting)).
This reasoning originates from the notion
that “[w]hen [the courts] appl[y] a rule of fed-
eral law to the parties before it, that rule is the
controlling interpretation of federal law and
must be given full retroactive effect in all cases
still open on direct review and as to all events,
regardless of whether such events predate or
postdate [the court’s] announcement of the
rule.” Harper v. Va. Dep’t of Taxation, 509
U.S. 86, 97 (1993). The logic is that judges
“say what the law is,” rather than “what the
law shall be” as legislatures do; overruling a
former judicial decision is not a new declara-
tion of law, but rather a new decision that
corrects legal error. See id. at 107 (Scalia, J.,
concurring) (citing Marbury v. Madison, 5
U.S. 137 (1803)).21
A.
First, Salazar-Regino argues that principles
21 For a comprehensive discussion of the devel-
opment of the retroactivity doctrine in the Supreme
Court, see Hulin, 178 F.3d at 329-33.

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14
of administrative rather than judicial retroac-
tivity should be applied, citing Microcomputer
Tech. Inst. v. Riley, 139 F.3d 1044, 1050 (5th
Cir. 1998).22 As we stated in Riley,
When an agency changes its policy pro-
spectively, a reviewing court need only de-
termine the reasonableness of the new
interpretation in terms of Chevron. But
where an agency makes a change with
retroactive effect, the reviewing court must
also determine whether application of the
new policy to a party who relied on the old
is so unfair as to be arbitrary and capri-
cious.
Id. We concluded that in evaluating the retro-
active effect of a change in administrative pol-
icy, we “balance the ills of retroactivity against
the disadvantages of prospectivity.” Id.
We do not apply the administrative retro-
activity test in this case, where the rule that is
sought to be applied retroactively is not a
change in administrative policy, but rather an
administrative decision that interprets a statu-
tory change. In Riley, the petitioner claimed
reliance on policy stated in a memorandum,
issued by the agency, that was contrary to the
administrative decision made by the agency in
his case. See id. at 1049-50.
Salazar-Regino may claim reliance on
policy expressed in Manrique befor her guilty
plea, but the fact is that § 1101(a)(48), de-
fining “conviction,” also predated her plea, and
thus Roldan did not constitute a sua sponte
change in policy that we review for arbitrari-
ness and capriciousness, but rather a determi-
nation that the statute that it was charged with
administering abrogated its prior policy. Rold-
an was not establishing a new rule or standard
of conduct, but was merely determining the
effect of a superseding act of Congress.
B.
The petitioners also claim, citing Hulin, 178
F.3d at 333, that the judicial retroactivity
doctrine is inapplicable to apply Roldan and
Hernandez-Avalos to their cases because they
claim that judicial retroactivity cannot trump
the claimed due process violation, the require-
ment of “fair notice” under BMW of North
America v. Gore, 517 U.S. 559 (1996). In
Hulin, we noted several instances in which a
new rule does not “determine the outcome of
the case”:
Thus, a court may find (1) an alternative
way of curing the constitutional violation,
or (2) a previously existing, independent
legal basis (having nothing to do with retro-
activity) for denying relief, or (3) as in the
law of qualified immunity, a well-estab-
lished general legal rule that trumps the
new rule of law, which general rule reflects
both reliance interests and other significant
policy justifications, or (4) a principle of
law, such as that of “finality” present in the
Teague context, that limits the principle of
retroactivity itself. But, this case [where a
concern about reliance alone has led the
Ohio court to create what amounts to an ad
hoc exemption from retroactivity involves
no such instance[.]
Hulin, 178 F.3d at 333 (citing Reynoldsville
Casket Co. v. Hyde, 514 U.S. 749, 758-59
22 This argument could only possibly apply to
the retroactive application of Roldan, which was a
BIA decision, and not the retroactive application of
Hernandez-Avalos, which is one of this court’s
opinions. Consequently, this argument could bene-
fit only Salazar-Regino and not Rangel-Rivera,
who appeals only the retroactive application of
Hernandez-Avalos to prevent her obtaining discre-
tionary relief from removal.

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15
(1995)). We then added:
Evidently, the Supreme Court has con-
cluded that the Linkletter[23] and Chevron
Oil[24] departures from traditional retroac-
tivity doctrine proved unsatisfactory. The
Court’s most recent decisions substantially
reject those departures and return to the
general rule of adjudicative retroactivity
leaving only an indistinct possibility of the
application of pure prospectivity in an ex-
tremely unusual and unforeseeable case.
Id. (emphasis added). The petitioners then cite
language from St. Cyr, 533 U.S. at 323-24,
which stated that it would be “contrary to
‘familiar considerations of fair notice, reason-
able reliance and settled expectations’” to
disrupt a fully-executed plea bargain by mak-
ing drastic, retroactive, changes to its immi-
gration consequencesSSand claim that it estab-
lishes the “extremely unusual” circumstances
envisioned by Hulin that may allow for the
“indistinct possibility” that judicial rulings not
be given retroactive effect.
The flaw in petitioners’ presentation is that
it is in essence nothing more than an argument
that the rulings should not be applied retroac-
tively because of reliance interestsSSthat
petitioners detrimentally relied on the BIA’s
pronouncements pre-Manrique and pre-
Hernandez-Avalos. The Supreme Court has
repeatedly rejected reliance alone as a reason
for overcoming the retroactivity doctrine.25 In
this context, where reliance interests alone are
insufficient to overcome judicial retroactivity,
petitioners fail to cite any cases that dictate “a
well-established general legal rule that trumps
the new rule of law, which general rule reflects
both reliance interests and other significant
policy justifications” as in the law of qualified
immunity. Hulin, 178 F.3d at 333 (emphasis
added).
Although it is true that in St. Cyr, 533 U.S.
at 321-22, the Court noted the problems of fair
notice in the context of attaching new disabili-
ties to plea agreements, that case dealt with
the question whether a statutory change could
be applied retroactively by command of Con-
gress, and did not deal with whether a judicial
decision can be applied in such a way. See St.
Cyr, 533 U.S. at 321-22. This distinction is
importantSSalthough the plain, correct state-
ment of the law provided St. Cyr with the type
of relief he desired at the time of his plea
agreement, Salazar-Regino and Rangel-Rivera
were relying on plainly erroneous interpreta-
tions of the law in expecting relief at the time
they pleaded guilty, as illuminated by the BIA
in Roldan and by this court in Hernandez-
23 381 U.S. 618 (1965) (holding that a decision
to limit a new rule of criminal constitutional law to
prospective application can be based on a balanc-
ing of the purpose of the new rule, the reliance
placed on the previous view of the law, and the
effect on the administration of justice of a retro-
spective application).
24 404 U.S. 97 (1971) (holding that in the fed-
eral noncriminal law context, a judicial decision
can be applied nonretroactively if it established a
new principle of law, if such a limitation will avoid
substantial inequitable results, and if retrospective
application will not retard the purpose and effect of
the new rule).
25 See, e.g., Harper, 509 U.S. at 97 (“In both
civil and criminal cases, we can scarcely permit the
substantive law [to] shift and spring according to
the particular equities of individual parties’ claims
of actual reliance on an old rule and of harm from
a retroactive application of the new rule.”) (internal
citations omitted); see also Reynoldsville Casket,
514 U.S. at 759.

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16
Avalos.26 The district court and the BIA did
not err in applying Roldan and Hernandez-
Avalos retroactively.
VII.
The petitioners argue that their removal
violated the Equal Protection Clause for two
reasons, based on alleged unequal disposition
of their cases resulting from the (1) timing and
(2) location of their proceedings. We examine
each in turn.
A.
Salazar-Regino claims her rights under the
Equal Protection Clause were violated because
the results of her proceedings were influenced
by their timing. She finds unfairness in the fact
that had her removal proceedings taken place
a few weeks later, Roldan would already have
been issued, so the IJ would have found her
removable. Because, however, at that hypo-
thetical time, Hernandez-Avalos would not yet
have been issued, Salazar-Regino would have
been eligible for discretionary relief. Although
Salazar-Regino is correct concerning the
unfortunate effect of the timing of her pro-
ceedings, we dismiss the argument as frivo-
lous, because she points to no persuasive
authority that an Equal Protection Clause
violation may be based on timing.27
B.
Petitioners allege equal protection viola-
tions based on the location of their proceed-
ings; arguing that varying case law in other
circuits would have made them eligible for
relief. We dismiss this claim as frivo-
lousSSadopting this unsupported argument
would wreck havoc on the federal judicial
system as we know itSSbasically disallowing
any split of authority between or among the
various circuits.
26 In Hernandez-Avalos, the alien argued that
the interpretation of “aggravated felony” we artic-
ulated in that case should not apply to him because,
had the INS officials properly applied BIA prece-
dent at the time he was removed, his underlying
state crime would not have qualified. See
Hernandez-Avalos, 251 F.3d at 508. We rejected
this claim, noting that “[w]e see no reason why the
procedural posture of this case requires us to hold
that it was fundamentally unfair to treat Hernandez
as an aggravated felon because he should have the
benefit of an agency’s erroneous interpretation of
applicable law.” Id. at 509.
27 Salazar-Regino cites only the separate opin-
ion in Logan v. Zimmerman Brush Co., 455 U.S.
422 (1982), which would have found an Equal
Protection violation where a statute gave different
treatment to discrimination claims that were con-
sidered by a Commission within 120 days of being
filed by a complainant, and claims that were con-
sidered afterwards (which would be summarily dis-
missed). The Court found no rational basis in the
distinction, because “[t]erminating potentially
meritorious claims in a random manner obviously
cannot serve to redress instances of discrimina-
tion,” prevention of which is the purpose of the
statute. See id. at 439 (separate opinion of Black-
mun, J.).
This is distinguishable from the situation at
hand, because no statute works here to create di-
vergent outcomes based on timing of certain ac-
tions beyond Salazar-Regino’s control; rather, the
disparate effects are a result of the speed of the
removal proceedings in relation to the issuance of
other legal precedent. The fact is that any party
who is subject to the effect of a judicial decision
that changes the interpretation of a statute can al-
ways complain that he received disparate treatment
vis-á-vis others whose cases were finalized before
the new interpretation was rendered. We cannot
find an equal protection violation in such a circum-
stance, because it would eviscerate the well-estab-
lished judicial retroactivity doctrine.

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17
VIII.
Petitioners contend their removal violated
international law. Their entire argument solely
consists of a citation to Beharry v. Reno, 183
F. Supp. 2d 584, 593-99 (E.D.N.Y. 2002).
This point is waived for failure to brief
adequately.28 Beyond failing to explain how
the cited opinion should apply to the instant
case, petitioners fail to mention that the opin-
ion is not even good law: It was overruled in
Beharry v. Ashcroft, 329 F.3d 51 (2d Cir.
2003).
IX.
In summary, we DISMISS Salazar-Regino-
’s claims that we transferred to this court,
pursuant to 28 U.S.C. § 1631, because the
BIA did not commit reversible error. We
AFFIRM the dismissal of the entirety of
Rangel-Rivera’s habeas petition and the claims
that remained in Salazar-Regino’s habeas
petition, because the district court committed
no reversible error.
28 See FED. R. APP. P. 28(a)(9)(A); see also
United States v. Ogle, 2005 U.S. App. LEXIS
12714, at *2 (5th Cir. June 27, 2005) (per curiam);
United States v. Martinez, 263 F.3d 436 (5th Cir.
2001).

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