Marco Garcia- Echa Verria v. United States of America

*The Honorable Patrick J. Duggan, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0204P (6th Cir.)
File Name: 04a0204p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARCO GARCIA-
ECHA VERRIA,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 03-3285
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 02-07228—John W. Potter, District Judge.
Submitted: April 23, 2004
Decided and Filed: July 1, 2004
Before: MERRITT and MOORE, Circuit Judges;
DUGGAN, District Judge.*
2 Garcia-Echaverria v. United States No. 03-3285
1The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”) adopted “the term ‘removal,’ which essentially
eliminated a distinction that formerly existed between ‘deportation’
proceedings and ‘exclusion p roceed ings.’ Thus, a determination whether
an alien is ‘inadmissible’ (i.e., cannot, or did not, enter the country
lawfully), or ‘deportable’ (i.e., entered the country lawfully but is no
longer entitled to stay), would be determined through ‘remo val’
proceed ings.” Balogun v. U. S. Att’y Gen., 304 F.3d 130 3, 13 06-0 7 (11th
Cir. 2002) (citations omitted).
_________________
COUNSEL
ON BRIEF: Lawrence J. Kiroff, ASSISTANT UNITED
STATES ATTORNEY, Toledo, Ohio, for Appellee. Marco
A. Garcia-Echaverria, El Paso, Texas, pro se.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Marco Garcia-
Echaverria (“Garcia-Echaverria”), pro se Petitioner-
Appellant, appeals the district court’s denial of his petition for
habeas corpus relief. Garcia-Echaverria was sentenced for a
conviction of unlawful reentry, in violation of 8 U.S.C.
§ 1326(b), and the Immigration and Naturalization Service
(“INS,” now the Department of Homeland Security “DHS,”)
has reinstated the prior Final Order of Removal. On appeal,
Garcia-Echaverria argues that his initial removal was
unlawful, and therefore that his current detention is
unconstitutional. Garcia-Echaverria contends that his initial
removal was unlawful because the Immigration Judge (“IJ”)
and the Board of Immigration Appeals (“BIA”) erred by
concluding that Garcia-Echaverria’s Kentucky drug
conviction constitutes an “aggravated felony,” making him
ineligible for relief from deportation/removal.1 Garcia-
Echaverria also argues that his initial removal was unlawful

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No. 03-3285 Garcia-Echaverria v. United States 3
2In his appe al of the district court’s denial of his habeas petition,
Garcia-Echaverria also argues that his initial removal was unlawful
because the INS removed him while his Kentucky drug conviction was on
direct appeal, while his app eal of the BIA ’s orde r of removal and his
motion for a stay of removal were pending before the United States Court
of Appeals for the Fifth Circuit, after the United States District Court for
the Southern District of N ew Y ork (“S .D.N .Y.”) had transferred his
habeas petition to the United States District Court for the Western District
of Louisiana, and after the S.D.N.Y. had issued a stay of removal. These
issues are discussed fully in Un ited States v. G arcia -Echav erria, 03-3655,
Garcia-Echaverria’s direct appeal of his conviction for unlawful reentry.
3In this opinion, we recount only the facts relevant to the issues we
are addressing solely in G arcia-E chaverria’s appeal of the district co urt’s
denial of his habeas petition. Our opinion in United States v. Garcia-
Ech averria, 03-3 655, includes a more complete statement of facts,
including those bearing on issues that Garcia-Echaverria raised in both his
direct appeal of his conviction for unlawful reentry and his appeal of the
denial of his habeas petition.
because (1) the line that 8 U.S.C. § 1182(h) draws between
illegal aliens (“non-LPRs”) and lawful permanent residents
(“LPRs”) violates the Equal Protection Clause of the Fifth
Amendment; and (2) application of the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), which
make Garcia-Echaverria ineligible for relief from
deportation/removal, raises retroactivity concerns.2
For the following reasons, we AFFIRM the district court’s
decision denying Garcia-Echaverria’s petition for habeas
corpus relief.
I. BACKGROUND
Garcia-Echaverria, a native and citizen of Mexico, entered
the United States on or about January 1, 1980, and became a
lawful permanent resident on or about January 26, 1990.3 On
January 6, 1997, Garcia-Echaverria was convicted by the
State of Kentucky pursuant to a guilty plea, entered on
4 Garcia-Echaverria v. United States No. 03-3285
December 16, 1996, to the charge of “Trafficking Marijuana
over 8 ounces, less than 5 pounds,” in violation of K.R.S.
218A.1421(3). Joint Appendix (“J.A.”) at 141-42. On
January 10, 1997, the Kentucky Circuit Court sentenced
Garcia-Echaverria to five years of imprisonment for his
Kentucky drug conviction.
On May 13, 1997, the INS issued Garcia-Echaverria a
Notice to Appear, charging that he was removable due to his
Kentucky drug conviction under two sections of the
Immigration and Nationality Act (“INA”) —
§ 237(a)(2)(A)(iii) (codified as 8 U.S.C. § 1227(a)(2)(A)(iii))
for being convicted of an “aggravated felony” and
§ 237(a)(2)(B)(i) (codified as 8 U.S.C. § 1227(a)(2)(B)(i)) for
being convicted of a controlled substance offense. On
September 7, 1999, an IJ ordered Garcia-Echaverria removed
from the United States. On July 20, 2000, the BIA dismissed
Garcia-Echaverria’s appeal, finding that a waiver of
inadmissibility pursuant to § 212(c) of the INA (originally
codified as 8 U.S.C. § 1182(c), but repealed by the IIRIRA,
104 Pub. L. No. 104-208, § 304(b), 110 Stat. 3009 (1996)),
was not available to him, and that he was statutorily ineligible
for cancellation of removal pursuant to § 240A(a) of the INA
(codified at 8 U.S.C. § 1229b).
Garcia-Echaverria was found in the United States on
August 31, 2001, when he was stopped for speeding by
officers of the Ohio Highway Patrol at Fremont, Ohio. On
October 3, 2001, a grand jury returned a one-count
indictment, charging Garcia-Echaverria with being an alien
found in the United States on or about August 31, 2001, after
having been deported for committing an “aggravated felony”
and without obtaining permission to reenter from the Attorney
General, in violation of 8 U.S.C. § 1326(b). After his motions
to dismiss the indictment were denied, Garcia-Echaverria
pleaded guilty on September 10, 2002, to the charge of
unlawful reentry, and the district court sentenced him to
thirty-seven months of imprisonment. Prior to pleading
guilty, Garcia-Echaverria filed on May 3, 2002, in the

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No. 03-3285 Garcia-Echaverria v. United States 5
Northern District of Ohio, a petition for a writ of habeas
corpus challenging his current detention. On December 30,
2002, the district court denied Garcia-Echaverria’s petition
for habeas corpus. Garcia-Echaverria filed a timely notice of
appeal.
II. JURISDICTION
The district court had jurisdiction over Garcia-Echaverria’s
habeas petition pursuant to 28 U.S.C. § 2241. Garcia-
Echaverria filed both a direct appeal of his conviction for
unlawful reentry and a habeas petition challenging his current
detention. Typically, a federal prisoner may file a § 2241
petition contesting the legality of his detention only if his
claim is such that he cannot obtain effective relief on direct
appeal or through a § 2255 motion. Paulino v. United States,
352 F.3d 1056, 1060-61 (6th Cir. 2003); Bannerman v.
Snyder, 325 F.3d 722, 723 (6th Cir. 2003). While an alien
may file a § 2241 petition challenging his removal
proceedings, an alien is not “in custody” for removal purposes
if he is detained pursuant to a sentence for a criminal
conviction, even if the INS has filed a detainer order with the
prison where the petitioner is incarcerated. Zolicoffer v. U.S.
Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003)
(collecting cases); Prieto v. Gluch, 913 F.2d 1159, 1163-64
(6th Cir. 1990), cert. denied, 498 U.S. 1092 (1991). In this
case, however, at the time Garcia-Echaverria filed his § 2241
petition, the INS had already reinstated Garcia-Echaverria’s
prior Final Order of Removal. The IIRIRA requires the INS
to take custody of and commence procedures to execute the
removal of an alien who is subject to a final order of removal
based upon a conviction for an “aggravated felony.”
Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003); see also
Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1022 n.4 (6th
Cir. 1999). This requirement was strong evidence of the
DHS’s intention to take custody of Garcia-Echaverria
immediately following the conclusion of his sentence, and
thus satisfies the custody requirement for a § 2241 petition.
Because Garcia-Echaverria was in INS custody at the time he
6 Garcia-Echaverria v. United States No. 03-3285
4Because Garcia-Echaverria was convicted of unlawful reentry, he
had the opportunity in his direct appeal to attack collaterally the legality
of his prior deportation. We co nclude, however, that the district court’s
jurisdiction over a § 2241 petition should not turn upon the par ticular
crime of which the petitioner has been convicted.
filed his habeas petition challenging the constitutionality of
his confinement, the district court had jurisdiction pursuant to
28 U.S.C. § 2241.4
This court has jurisdiction over the appeal pursuant to 28
U.S.C. §§ 1291 and 2253. Subsequent to this case being
submitted on the briefs, Garcia-Echaverria completed his
sentence for his § 1326(b) conviction, and Garcia-Echaverria
is currently being detained by the DHS pending his removal.
Garcia-Echaverria’s completion of his criminal sentence
neither deprives us of jurisdiction over this appeal nor moots
the claims asserted in the habeas petition that we are
reviewing in this appeal. Rosales-Garcia v. Holland, 322
F.3d 386, 394-96, 395 n.6 (6th Cir.) (en banc), cert. denied,
539 U.S. 941 (2003). We review de novo questions of
statutory interpretation raised in a § 2241 petition. Mustata,
179 F.3d at 1019.
III. ANALYSIS
Garcia-Echaverria argues that the BIA erred by concluding
that his Kentucky drug conviction was an “aggravated
felony,” making him both deportable and ineligible for relief
from deportation/removal. Although Garcia-Echaverria
concedes that his drug conviction is a felony under Kentucky
law, he argues that it does not constitute an “aggravated
felony” within the meaning of 8 U.S.C. § 1101(a)(43)(B)
because the offense to which he pleaded guilty did not contain
a trading or dealing element nor would it have been
punishable as a felony under federal law.
The BIA correctly determined that Garcia-Echaverria’s
Kentucky drug conviction constitutes an “aggravated felony”

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No. 03-3285 Garcia-Echaverria v. United States 7
within the meaning of the INA. The term “aggravated
felony” is defined through a list of qualifying offenses, which
includes: “illicit trafficking in a controlled substance (as
defined in section 802 of Title 21), including a drug
trafficking crime (as defined in section 924(c) of Title 18).”
8 U.S.C. § 1101(a)(43)(B). In § 924(c), “the term ‘drug
trafficking crime’ means any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.),” or one of
two other federal acts not relevant here. 18 U.S.C.
§ 924(c)(2).
There is some conflict regarding what elements must be
present in order for a state offense to constitute a drug-
trafficking crime within the meaning of 8 U.S.C.
§ 1101(a)(43)(B). United States Sentencing Guideline
(“U.S.S.G.”) § 2L1.2 requires a sentencing enhancement to be
imposed for the crime of unlawful reentry, if the alien was
deported after having committed a drug-trafficking crime.
Several circuits have held that in the sentencing context, the
phrase “drug trafficking crime” includes offenses that would
be punishable under the Controlled Substances Act (or two
other federal acts not relevant here), so long as the offense is
punishable as a felony under either state or federal law.
Gerbier v. Holmes, 280 F.3d 297, 299 (3d Cir. 2002). Under
this interpretation, a drug offense that is punishable as a
felony under state law could be considered an “aggravated
felony,” for purposes of applying the enhancement contained
in U.S.S.G. § 2L1.2, even if the conduct would have only
been punishable as a misdemeanor under federal law. Id.
The Third Circuit has defined 8 U.S.C. § 1101(a)(43)(B)
differently for deportation purposes. Id. According to the
Third Circuit,
The BIA has interpreted § 924(c)(2) to require that, for
deportation purposes, a state drug conviction, whether it
be a felony or a misdemeanor, must either contain a
“trafficking” component or be punishable as a felony
under federal law in order for it to constitute an
8 Garcia-Echaverria v. United States No. 03-3285
‘aggravated felony.’ In contrast, several Courts of
Appeals have interpreted the same language in
§ 924(c)(2), albeit in the Sentencing Guidelines context,
to require that the state drug conviction need only be a
felony under state law and that the state crime be
punishable under the federal Controlled Substances Act,
either as a felony or a misdemeanor.
Gerbier, 280 F.3d at 299 (emphases in original). The Third
Circuit has held that for deportation purposes, the BIA’s
interpretation of § 924(c)(2) is correct. Id.
Under the BIA’s approach, a state drug conviction
constitutes an “aggravated felony” under either of two
routes. Under the first route, a felony state drug
conviction is an “aggravated felony” under § 924(c)(2) if
it contains a trafficking element. Under the second route,
a state drug conviction, either a felony or a misdemeanor,
is an “aggravated felony” if it would be punishable as a
felony under the Controlled Substances Act.
Id.
We have not taken a position, in either the Sentencing
Guidelines context or the removal context, regarding what
elements must be present in order for a state crime to
constitute a drug-trafficking crime within the meaning of
8 U.S.C. § 1101(a)(43)(B), although we have held that at a
minimum, a state conviction resulting from the sale of drugs
for money qualifies. Nakhleh v. INS, 38 F.3d 829, 831 (6th
Cir. 1994). It is clear, however, that the BIA’s approach is
more favorable towards aliens. Because we do not think that
Garcia-Echaverria can succeed under even the BIA’s more
favorable approach, we will assume for the limited purpose of
this appeal that the BIA’s approach applies.
Garcia-Echaverria’s conviction may not constitute an
“aggravated felony” under the “trafficking” route. Garcia-

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No. 03-3285 Garcia-Echaverria v. United States 9
Echaverria pleaded guilty to K.R.S. 218A.1421(3), which
provides:
Trafficking in eight (8) or more ounces but less than five
(5) pounds of marijuana is:
(a) For a first offense a Class D felony.
(b) For a second or subsequent a Class C felony.
For purposes of K.R.S. 218A.1421, the term “traffic” “means
to manufacture, distribute, dispense, sell, transfer, or possess
with intent to manufacture, distribute, dispense, or sell a
controlled substance.” K.R.S. 218A.010(28). It is undisputed
that Garcia-Echaverria’s conviction was a felony under
Kentucky law, but the parties disagree over whether the
offense contained a trafficking element. According to the
Third Circuit, trafficking requires “unlawful trading or
dealing of a controlled substance.” Gerbier, 280 F.3d at 305.
Garcia-Echaverria could have been convicted of violating
K.R.S. 218A.1421(3) for possession with intent to sell.
Indeed, Garcia-Echaverria’s indictment charges him with
“knowingly and unlawfully traffick[ing] in marijuana by one
pound of marijuana in his possession for purpose of resale.”
J.A. at 48. It is not clear whether possession with intent to
resell constitutes “unlawful trading or dealing,” and thus
trafficking under this route. See Gerbier, 280 F.3d at 313
(suggesting that “possession with intent to distribute” may
constitute trading or dealing ). But see Wilson v. Ashcroft,
350 F.3d 377, 382 (3d Cir. 2003) (remanding to the district
court for consideration in the first instance of the question
whether a conviction for possession with intent to distribute
marijuana contains a trading and dealing element).
Garcia-Echaverria’s conviction, however, constitutes an
“aggravated felony” under the “hypothetical federal felony”
route, making him both removable and ineligible for relief
from removal. Although Garcia-Echaverria asserts that the
proper federal analogue for his Kentucky drug conviction is
21 U.S.C. § 844, an examination of the applicable statutes
10 Garcia-Echaverria v. United States No. 03-3285
indicates that the proper analogue is actually 21 U.S.C.
§ 841(b). Section 844(a) provides:
It shall be unlawful for any person knowingly or
intentionally to possess a controlled substance unless
such substance was obtained directly, or pursuant to a
valid prescription or order, from a practitioner, while
acting in the course of his professional practice. . . . Any
person who violates this subsection may be sentenced to
a term of imprisonment of not more than 1 year, and
shall be fined a minimum of $1,000, or both . . . .
Section 841(a)(1) makes it unlawful to knowingly or
intentionally, “manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a
controlled substance.” (emphasis added). Section
841(b)(1)(D), the applicable penalty provision, further
provides:
In the case of less than 50 kilograms of marihuana . . .
such person shall, except as provided in paragraphs
(4) and (5) of this subsection, be sentenced to a term of
imprisonment of not more than 5 years, a fine not to
exceed the greater of that authorized in accordance with
the provisions of Title 18, or $250,000 if the defendant is
an individual . . . .
To be convicted pursuant to KRS 218A.1421(3), Garcia-
Echaverria must have, at a minimum, possessed with an intent
to distribute, etc. between eight ounces and five pounds of
marijuana. Therefore, Garcia-Echaverria was punishable
pursuant to 21 U.S.C. § 841(b)(1)(D), which carries a
maximum punishment of five years, and thus constitutes a
felony pursuant to 18 U.S.C. § 3559, which provides that a
federal offense is a felony if its maximum penalty is greater
than one year.
It is true that § 841(b)(4) provides:

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No. 03-3285 Garcia-Echaverria v. United States 11
5W e have no binding precedent defining “small amount” within the
meaning of § 841(b)(4). Garcia-Echaverria, however, possessed at least
eight ounces, which is not a “small amount.” The escape-hatch provision
is designed to address the casual sharing of marijuana; behavior that is
akin to mere possession rather than distribution. Although distribution of
eight ounces of marijuana may be a small-scale drug transaction,
distribution of eight ounces is more than casual sharing.
6But see W ilson v. Ashcroft, 350 F.3d 377, 382 (3d Cir. 2003)
(holding that pursuant to § 841(b)(4), the proper federal analogue for a
state conviction for possession with intent to distribute more than one
ounce but less than five pounds of marijuana was 21 U .S.C. § 84 4 beca use
the state offense failed to include remuneration as an element).
Notwithstanding paragraph (1)(D) of this subsection, any
person who violates subsection (a) of this section by
distributing a small amount of marihuana for no
remuneration shall be treated as provided in section 844
of this title and section 3607 of Title 18.
(emphasis added). Garcia-Echaverria did not assert in his
appellate brief that he falls within this escape-hatch provision.
Moreover, we conclude that his Kentucky drug conviction,
which involved at least eight ounces of marijuana, does not
fall within this provision,5 and thus the proper federal
analogue for Garcia-Echaverria’s Kentucky drug conviction
is § 841(b)(1)(D). Therefore, Garcia-Echaverria’s Kentucky
drug conviction constitutes an “aggravated felony” under this
route.6
Next, Garcia-Echaverria argues that denying him relief
from deportation/removal pursuant to 8 U.S.C. § 1182(h)
violated his rights under the Equal Protection Clause of the
Fifth Amendment. Although Garcia-Echaverria concedes that
statutes that draw distinctions between different classes of
aliens are subjected only to rational review, he argues that the
distinction that 8 U.S.C. § 1182(h) draws between LPRs and
non-LPRs is not rationally related to any legitimate
government interest.
12 Garcia-Echaverria v. United States No. 03-3285
7Section 348(a) of the IIRIRA provides: “No waiver shall be granted
under this subsection in the case of an alien who has previously been
admitted to the United States as an alien lawfully admitted for permanent
residence if either since the date of such admission the alien has been
convicted of an aggravated felony or the alien has not lawfully resided
continuously in the United States for a period of not less than 7 years
immediately preceding the date of initiation of proceedings to remove the
alien from the United States. No court shall have jurisdiction to review
a decision of the Attorney General to grant or deny a waiver und er this
subsection.” IIRIRA, Pub. L. No. 104-208 , § 348(a), 110 Stat. 3009
(1996). This limitation became effective immediately upon the enactment
of the IIR IRA in Sep tember 19 96. See id. at § 348(b).
It is true that 8 U.S.C. § 1182(h) treats differently LPRs and
non-LPRs, in that it allows the Attorney General to grant an
adjustment of status to some non-LPRs who have been
convicted of an “aggravated felony,” but prohibits the
Attorney General from granting relief to LPRs who have been
convicted of an “aggravated felony.” While a district court in
our circuit has held that this distinction violates equal
protection, Roman v. Ashcroft, 181 F. Supp. 2d 808, 812-14
(N.D. Ohio 2002), vacated on other grounds, 340 F.3d 314
(6th Cir. 2003), several other circuits have held that this
distinction survives the applicable rational-review standard.
Dipeppe v. Quarantillo, 337 F.3d 326, 331-32 (3d Cir. 2003);
Lukowski v. INS, 279 F.3d 644, 647 (8th Cir. 2002); Lara-
Ruiz v. INS, 241 F.3d 934, 946-48 (7th Cir. 2001); Moore v.
Ashcroft, 251 F.3d 919, 924-26 (11th Cir. 2001).
We have not yet ruled on this issue, and we may not do so
in this case because Garcia-Echaverria does not have standing
raise this challenge. Section 1182(h) allows the Attorney
General to grant an adjustment of status to some non-LPRs
who have been convicted of certain crimes, including a
violation of a law relating to a controlled substance, but only
“insofar as it relates to a single offense of simple possession
of 30 grams or less of marijuana.” See 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) and (h). In 1996, § 348 of the IIRIRA
amended 8 U.S.C. § 1182(a) to prohibit the Attorney General
from granting a similar waiver to LPRs.7 Garcia-Echaverria

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No. 03-3285 Garcia-Echaverria v. United States 13
At the time Garcia-Echaverria committed his offense conduct on May
31, 1996, and when he pleaded guilty of December 16, 1996, the Attorney
General was prohibited from granting a waive r to aliens who had been
convicted of a controlled substance offense, except for simple possession
of less than thirty grams of marijuana. 8 U.S.C. § 118 2(h)(1995).
Although it does not appear that G arcia-Echaverria has raised a
retroactivity argument regarding § 348 of the IIRIRA, any such argument
would be without merit due to the fact that he was ineligible for such
relief prior to the enactment of the IIRIRA.
8W e note that the Supreme Co urt’s retroactivity analysis in St. Cyr,
533 U.S. 289, 320-23 (2 001 ), turned upon the timing of the d efendant’s
plea in relation to the repeal of § 212(c) relief, not upon the timing of the
defendant’s criminal conduct in relation to the repeal of § 212(c).
was convicted of possession with intent to distribute at least
eight ounces of marijuana; therefore, he would not have been
eligible for an adjustment of status, even if he were a non-
LPR, and regardless of the limitation imposed by § 348 of the
IIRIRA. Because Garcia-Echaverria would not have been
eligible for an adjustment of status even if he were a non-
LPR, he lacks standing to raise this challenge.
Garcia-Echaverria also argues that denying him the
opportunity to apply for a waiver of deportation pursuant to
§ 212(c) of the INA had an impermissible retroactive effect
because he committed his Kentucky drug offense prior to the
repeal of that provision by the IIRIRA.
It is true that INS v. St. Cyr, 533 U.S. 289, 321-22 (2001),
held that denying some aliens the opportunity to apply for a
waiver of deportation pursuant to § 212(c) of the INA has an
impermissible retroactive effect. St. Cyr held that denying the
opportunity to apply for § 212(c) relief to aliens who had
pleaded guilty in reliance upon the opportunity to apply for
such relief would disrupt the quid pro quo of plea bargaining.
Id. at 321-24. By the time Garcia-Echaverria committed his
Kentucky drug offense on May 31, 1996,8 and certainly by
the time he pleaded guilty on December 16, 1996, § 440(d)
14 Garcia-Echaverria v. United States No. 03-3285
9Prior to the enactment of the AEDP A, § 212(c) of the INA (codified
at 8 U.S.C. § 118 2(c)(1995)) allowed the Attorney General to exercise his
discretion and waive the deportation of a lawful permanent resident alien,
meeting certain requirements, who was excludable by reason of having
com mitted an “aggravated felony,” except the Attorney General had no
discretion to admit:
an alien who has been convicted of one or more aggravated
felonies and has served for such felony or felonies a term of
imprisonm ent of at least 5 years.
8 U.S.C. § 1 182 (c)(1995 ); St. Cyr, 533 U.S. at 294-95 (explaining that
although § 212(c) on its face only ap plies to exclusion proceedings, it had
been interpreted as allowing lawful permanent residents to seek a waiver
of deportation). At that time, the term “aggravated felony” included,
“illicit trafficking in a controlled substance (as defined in section 102 of
the Controlled Substances Act [21 USC S § 802 ]), including a drug
trafficking crime (as defined in section 924(c) of title 18, United States
Code).” 8 U.S.C. § 110 1(a)(43)(B)(19 95). An alien convicted of illicit
trafficking of a co ntrolled substance, however, would have remained
eligible for discretionary waiver of deportation if he had served less than
five years of imprisonment. 8 U.S.C. § 1182(c)(199 5).
Section 440(d) of the AEDP A narrowed the Attorney General’s
discretion, prohibiting the Attorney General from waiving the deportation
of a lawful permanent resident, who was excludable by reasons of having
committed “any criminal offense covered in section 241 (a)(2)(A)(iii)
[“aggravated felony”], (B) [controlled substance conviction],” etc.,
regardless of whether he had served five years of impriso nment. AEDPA,
Pub. L. No. 104-132, § 440(d), 110 Stat. 1214 (1996); 8 U.S.C.
§ 1227 (a)(2)(A)(iii) and (B).
Section 304 of the IIRIRA repealed § 2 12(c) of the INA and replaced
it with 8 U.S.C. § 1229b, which prohibits the Attorney General from
cancelling the removal of an alien who has ever “been convicted of any
aggravated felony.” 8 U.S.C. § 1229b(a)(3); IIRIRA, Pub. L. No. 104-
208, § 304(a)-(b), 110 Stat. 3009 (1996). With some exceptions not
relevant here, this provision did not become effective until April 1, 1997,
and by its terms applied to removal proceedings that commenced on or
after that date. Id. at § 309(a). As discussed in St. Cyr, 533 U.S. at 321-
26, this provision raised retroactivity concerns when applied to some
aliens, but it does not raise retroactivity concerns when applied to Garcia-
Echaverria.
of the AEDPA9 made him ineligible for a discretionary
waiver of deportation. AEDPA, Pub. L. No. 104-132,
§ 440(d), 110 Stat. 1214 (1996); 8 U.S.C. § 1227(a)(2)(A)(iii)
and (B). St. Cyr aids only those aliens whose “convictions

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No. 03-3285 Garcia-Echaverria v. United States 15
were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible
for [discretionary cancellation of removal] at the time of their
plea under the law then in effect.” 533 U.S. at 326 (emphasis
added). Because he pleaded guilty and became ineligible for
a waiver of deportation after the AEDPA was enacted on
April 24, 1996, denying Garcia-Echaverria relief from
deportation/removal does not raise any retroactivity concerns.
Although Garcia-Echaverria was convicted pursuant to a
guilty plea prior to the effective date of the IIRIRA, he could
not have pleaded guilty in reliance on his ability to obtain a
discretionary cancellation of removal because under the
AEDPA he was not eligible for relief at the time he pleaded
guilty.
IV. CONCLUSION
For the forgoing reasons, we AFFIRM the district court’s
denial of Garcia-Echaverria’s petition for a writ of habeas
corpus.

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