United States v. 2006-11-21 | 04-70745 | SINOTES-CRUZ VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JOAQUIN SINOTES-CRUZ,
Petitioner, No. 04-70745
v. Agency No.
 A91-427-266ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 9, 2005—San Francisco, California
Filed November 22, 2006
Before: Alex Kozinski and William A. Fletcher,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge William A. Fletcher
*The Honorable H. Russel Holland, Senior District Judge for the Dis-
trict of Alaska, sitting by designation.
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COUNSEL
Kelly A. Evans, Jeffrey F. Barr, Snell & Wilmer, Las Vegas,
Nevada, Joaquin Sinotes-Cruz, Pro Se, Tucson, Arizona,
Lynn Marcus, University of Arizona, Tucson, Arizona, for the
petitioner.
David V. Bernal, Andrew C. MacLachlan, U.S. Department
of Justice, Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Petitioner Jose Joaquin Sinotes-Cruz petitions for review
from an order of removal. We hold that the government has
introduced sufficient evidence to carry its burden of proof that
Sinotes-Cruz is removable. We also hold, based on INS v. St.
Cyr, 533 U.S. 289 (2001), that the permanent stop-time rule
of § 240A(d)(1) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1229b(d)(1), may not be applied retroac-
tively to prevent Sinotes-Cruz from fulfilling the seven-year
continuous residence requirement of INA § 240A(a)(2), 8
U.S.C. § 1229b(a)(2), for cancellation of removal. Finally, we
hold that Sinotes-Cruz does not need a waiver of deportation
under INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), in
order to be eligible for cancellation of removal. Thus we do
not reach the question whether Sinotes-Cruz may simulta-
neously apply for waiver of deportation under § 212(c) and
for cancellation of removal under § 1229b(a).
We therefore grant Sinotes-Cruz’s petition and remand for
further proceedings consistent with this opinion.
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I. Background
Sinotes-Cruz petitions for review of the Board of Immigra-
tion Appeals’ (“BIA”) order requiring that he be removed to
Mexico. He initially entered the United States without inspec-
tion in 1981. He was granted lawful temporary resident status
in May 1988. He was granted lawful permanent resident sta-
tus in June 1990.
On June 2, 1993, before the enactment of the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Sinotes-Cruz pled guilty to two counts of
attempted aggravated assault in violation of Arizona Revised
Statutes §§ 13-1001(C)(3), 13-1204(A)(2) and (B). Imposition
of sentence was “suspended,” and he was placed on four years
probation. On August 6, 1997, after the enactment of IIRIRA,
he pled guilty to “[c]hild or vulnerable adult abuse” in viola-
tion of Arizona Revised Statutes §§ 13-3623(C)(2) and 13-
902(E). Sentence was again “suspended,” and he was placed
on three years probation.
On October 2, 2000, the former Immigration and Natural-
ization Service (“INS”)1 commenced removal proceedings
against Sinotes-Cruz by serving him with a Notice to Appear.
The notice charged removability on two grounds. First, it
charged removability under INA § 237(a)(2)(A)(ii), 8 U.S.C.
§ 1227(a)(2)(A)(ii), for having been convicted of two crimes
involving moral turpitude not arising out of a single scheme
of criminal misconduct. The two predicate convictions were
either of the two attempted aggravated assault convictions in
1993, plus the “child abuse” conviction in 1997. Second, it
1The INS was abolished by the Homeland Security Act of 2002, Pub.
L. No. 107-296, 116 Stat. 2135, and the majority of its immigration
enforcement functions were transferred to the Bureau of Immigration and
Customs Enforcement, part of the Department of Homeland Security. Her-
nandez v. Ashcroft, 345 F.3d 824, 828 n.2 (9th Cir. 2003). We will refer
to the government and INS interchangeably in this opinion.
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charged removability under INA § 237(a)(2)(E)(i), 8 U.S.C.
§ 1227(a)(2)(E)(i), for having been convicted of the crime of
child abuse in 1997.
On February 13, 2001, the INS added a third charge of
removability under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)
(2)(A)(i), for having been convicted of a crime involving
moral turpitude, which was committed within five years of
admission, and for which a sentence of one year or longer
could have been imposed. The predicate conviction for this
charge was either of the two attempted aggravated assault
convictions in 1993. Sinotes-Cruz was admitted in May 1988,
when he was granted temporary resident status. The date of
the crimes underlying the two convictions was March 1993,
just short of five years after Sinotes-Cruz’s admission.
Although he had brief-writing and other assistance from a
law school immigration clinic, Sinotes-Cruz appeared pro se
during the proceedings in the Immigration Court. Sinotes-
Cruz did not contest his removability in those proceedings.
Instead, he filled out Form EOIR-42A, requesting cancella-
tion of removal under § 1229b(a). He later asked, in the alter-
native, for simultaneous waiver of deportation under § 212(c)
and cancellation of removal under § 1229b(a).
In a written decision, the Immigration Judge (“IJ”) stated
that Sinotes-Cruz “admitted the allegations and conceded
removability under the charges.” Based on Sinotes-Cruz’s
“admissions and concessions,” the IJ held that he was remov-
able under the two initial charges of removability. The IJ did
not directly address the third charge. The IJ further held that
Sinotes-Cruz was ineligible for cancellation of removal
because under the stop-time rule of § 1229b(d)(1) either of his
1993 convictions stopped the accrual of the seven years of
continuous residence required for cancellation of removal. See
8 U.S.C. § 1229b(d)(1). Because neither of the first two
charges of removability would have triggered the operation of
the stop-time rule under § 1229b(d)(1) in a manner detrimen-
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tal to Sinotes-Cruz’s accumulation of seven years of continu-
ous presence, the IJ necessarily, but implicitly, also found that
Sinotes-Cruz was removable under the third charge. Finally,
the IJ held that Sinotes-Cruz could not apply simultaneously
for a waiver of deportation under § 212(c) and cancellation of
removal under § 1229b(a). In the IJ’s view, this conclusion
was necessary to support an order of removal because he
believed that a waiver of deportation under § 212(c) would
have allowed Sinotes-Cruz to escape the stop-time rule that
would otherwise have stopped the accrual of his seven years
of continuous residence. Based on these holdings, the IJ
entered an order of removal allowing voluntary departure.
The BIA affirmed. It held that Sinotes-Cruz was remov-
able, but it did not base its decision on Sinotes-Cruz’s pur-
ported admissions; instead, it relied on electronically
transmitted records of conviction introduced into evidence by
the government. It further held that the IJ had properly
applied the stop-time rule to the seven-year continuous resi-
dence requirement. Finally, it held that Sinotes-Cruz could not
simultaneously apply for waiver of deportation under § 212(c)
and cancellation of removal under § 1229b(a).
Sinotes-Cruz timely filed a petition for review in this court.
II. Standard of Review
When the BIA conducts an independent review of the IJ’s
findings we review the BIA’s decision and not that of the IJ.
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). To
the extent the BIA incorporates the IJ’s decision as its own,
we treat the IJ’s statements of reasons as the BIA’s and
review the IJ’s decision. Gonzalez v. INS, 82 F.3d 903, 907
(9th Cir. 1996). We may review a decision on a point of law
raised for the first time on appeal to the BIA if the BIA con-
siders that point on the merits. See Sagermark v. INS, 767
F.2d 645, 648 (9th Cir. 1985).
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The BIA’s interpretation and application of the immigra-
tion laws are generally entitled to deference. Ma v. Ashcroft,
361 F.3d 553, 558 (9th Cir. 2004). However, we are not obli-
gated to accept an interpretation that is demonstrably irratio-
nal or clearly contrary to the plain and sensible meaning of
the statute. Jahed v. INS, 356 F.3d 991, 997 (9th Cir. 2004).
Whether a particular conviction is a removable offense is
a question of law reviewed de novo. Lara-Chacon v. Ashcroft,
345 F.3d 1148, 1151 (9th Cir. 2003) (as amended). Legal
determinations regarding an alien’s eligibility for cancellation
of removal are reviewed de novo. See Montero-Martinez v.
Ashcroft, 277 F.3d 1137, 1145 (9th Cir. 2002). Whether appli-
cation of IIRIRA is impermissibly retroactive presents a ques-
tion of law that is reviewed de novo. See Jimenez-Angeles v.
Ashcroft, 291 F.3d 594, 599-600 (9th Cir. 2002).
III. Jurisdiction
The government has argued that under INA § 242(a)(2)(C),
8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review the
petition. However, this argument was made prior to the enact-
ment of the REAL ID Act of 2005. Pub. L. No. 109-13, 119
Stat. 231, 310 (2005). Section 106(a)(1)(A)(iii) of the Act
amended 8 U.S.C. § 1252 to add a new subsection. That sub-
section provides: “Nothing in subparagraph (B) or (C), or in
any other provision of this chapter (other than this section)
which limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or questions of
law raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section.” 8 U.S.C.
§ 1252(a)(2)(D). We are presented with reviewable questions
of law.
IV. Discussion
We take the BIA’s three holdings in turn — proof of
removability, operation of the “stop-time” rule, and simulta-
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neous applications for a waiver of deportation under § 212(c)
and cancellation of removal under § 1229b(a).
A. Proof of Removability
[1] The government has the burden to prove “by clear and
convincing evidence” that an alien is removable. INA
§ 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A). A determination
of removability by an IJ or the BIA must be “based upon rea-
sonable, substantial, and probative evidence.” Id. To deter-
mine whether a prior conviction supports a removal order, we
first apply the “ ‘categorical’ approach, ‘looking only to the
statutory definition[ ] of the prior offense.’ ” Tokatly v. Ash-
croft, 371 F.3d 613, 620 (9th Cir. 2004) (alteration in original)
(quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).
If the statutory definition of the offense of conviction is
broader than the definition of the relevant removal offense,
we apply a “modified” categorical approach in an attempt to
determine the conduct of which the defendant was actually
convicted. Id. Under the modified categorical approach, we
“look beyond the language of the statute to a narrow, speci-
fied set of documents that are part of the record of conviction”
in order to determine the conduct for which the alien was con-
victed. Id.
[2] It is undisputed that the two 1993 convictions for
attempted aggravated assault are categorically crimes of
“moral turpitude” within the meaning of §§ 1227(a)(2)(A)(i)
and (ii). See Ariz. Rev. Stat. § 13-1204(A)(2). However, the
categorical approach is not available for the 1997 conviction.
The federal statute requires that there have been “child
abuse,” § 1227(a)(2)(E)(i), and the Arizona statute under
which Sinotes-Cruz was convicted covers abuse of both chil-
dren and vulnerable adults. See Ariz. Rev. Stat. § 13-3623.
The government contends that it proved Sinotes-Cruz’s
1993 and 1997 convictions based on documents purportedly
FAXed to the INS by an Arizona official connected to the
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Arizona court system. Sinotes-Cruz does not contend that the
documents, if admissible as evidence, are insufficient to prove
the crimes of moral turpitude under the categorical approach,
or the crime of child abuse under the modified categorical
approach. Rather, he contends, based on INA § 240(c)(3)(C),
8 U.S.C. § 1229a(c)(3)(C), and on INS regulations, that the
documents are inadmissible.
Section 1229a(c)(3)(C) provides:
(C) Electronic records
In any proceeding under this chapter, any
record of conviction or abstract that has
been submitted by electronic means to the
Service from a State or court shall be
admissible as evidence to prove a criminal
conviction if it is—
(i) certified by a State official associated
with the State’s repository of criminal
justice records as an official record from
its repository or by a court official from
the court in which the conviction was
entered as an official record from its
repository, and
(ii) certified in writing by a Service offi-
cial as having been received electroni-
cally from the State’s record repository
or the court’s record repository.
A certification under clause (i) may be by
means of a computer-generated signature
and statement of authenticity.
The corresponding regulation tracks the provision in almost
exactly the same words as the statute. See 8 C.F.R. § 3.41(c)
(2000) (renumbered at 8 C.F.R. § 1003.41 (2003)).
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[3] It is uncontested that the electronically transmitted
records of conviction did not fully comply with the terms of
the statute and regulation. There is certification by an INS
official, but there is no certification by a state official.
Four separate records were transmitted, in two batches, by
FAX to the INS. The INS placed stamps on the last page of
each of the two batches. The first batch, transmitted on Sep-
tember 21, 2000, contained the judgments of conviction for
the 1993 and 1997 crimes. The stamp was placed on the last
page of the judgment of conviction for the 1997 crime. It
reads:
USINS
I HEREBY CERTIFY that the foregoing documents
were received by me, Brian P. McCarthy, by elec-
tronic transmission from the state of AZ record
repository of the Court of record depos-
itory.
9-21-00 [signature] IA
date Signature/Title
(Underlining indicates blanks where information was inserted
in handwriting, or could have been inserted.) Upside-down at
the bottom of each FAXed page is the notation “9-21-00 THU
13:03 FAX 7403251 LEGALRECORD,” followed by sequen-
tial page numbers.
The second batch, transmitted on November 14, 2000, con-
tained the indictment and the order of discharge from proba-
tion for the 1997 crime. The stamp was placed on the
discharge from probation. It reads:
USINS
I HEREBY CERTIFY that the foregoing documents
were received by me, Brian P. McCarthy, by elec-
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tronic transmission from the state of AZ record
repository of the Court of Pima County record
depository.
11-14-00 [signature] IA
date Signature/Title
(Underlining indicates blanks where information was inserted
in handwriting.) Upside-down at the bottom of each FAXed
page is the notation “11-14-00 TUE 13:02 FAX 7403251
LEGALRECORD,” followed by sequential page numbers.
Sinotes-Cruz contended before the BIA, and contends in
this court, that the failure to comply fully with the terms of
the statute and implementing regulation rendered the FAXed
records of conviction inadmissible. The BIA held that the
documents were admissible, writing only the following:
“[C]ontrary to the respondent’s argument, the conviction
records were properly certified by an immigration official[.]”
(Emphasis added.) Unfortunately, the BIA did not respond to
Sinotes-Cruz’s argument — which was that the records had
not been properly certified by a state official. We do not feel
justified in giving Chevron deference to the BIA’s interpreta-
tion of the statute in this circumstance, for the BIA did not
address Sinotes-Cruz’s actual objection to the records’ admis-
sibility under the statute. See Chevron, U.S.A. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842 (1984).
[4] Nonetheless, even without the assistance of Chevron
deference, we hold that it was not error for the BIA to rely on
the records. As we read § 1229a(c)(3)(C), it operates as a
safe-harbor. It only tells us the conditions under which an
electronically transmitted document must be admitted. See id.
(any record of conviction . . . shall be admissible as evidence
. . . if” (emphasis added)). That is, it establishes the maximum
standard for authentication of electronically transmitted
records of conviction, but it does not establish a minimum
standard. The government has long been required to provide
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some authentication of records of conviction introduced in
immigration proceedings. See Chew v. Boyd, 309 F.2d 857,
866-67 (9th Cir. 1962) (holding unauthenticated record inad-
missible). But § 1229a(c)(3)(C), passed as part of IIRIRA, has
done nothing to alter our normal rule that the documents may
be authenticated under INS regulations, or by “any procedure
that comports with common law rules of evidence.” Iran v.
INS, 656 F.2d 469, 472 n.8 (9th Cir. 1981) (as amended). The
guiding principle is that proper authentication requires some
sort of proof that the document is what it purports to be. Id.
at 473.
[5] Here, the two INS stamps at the end of the records
clearly indicate that the documents were received by an INS
official on the dates specified, and the records on their face
give every indication of being official Arizona court records.
Further, the dates given in the upside-down FAX notations on
the bottom of the pages indicate that the documents were
FAXed on the same day they were stamped as received by the
INS, and the term “LEGALRECORDS” in the same notations
strongly suggests that the records were FAXed from an Ari-
zona legal records depository. Finally, Sinotes-Cruz made no
objection in the Immigration Court to the admission of the
records. Under these circumstances, we do not hesitate in
holding that the BIA was justified in relying on the records in
concluding that Sinotes-Cruz was convicted of two crimes
involving moral turpitude (either of the 1993 convictions and
the 1997 conviction), one crime involving child abuse (the
1997 conviction), and one crime of moral turpitude commit-
ted within five years of admission (either of the 1993 convic-
tions). We therefore uphold the BIA’s determination that
Sinotes-Cruz was removable based on these convictions.
B. Operation of the Stop-Time Rule
A lawful permanent resident alien must satisfy three
requirements to be eligible for cancellation of removal. They
are set forth in § 1229b(a):
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(a) Cancellation of removal for certain permanent
residents
The Attorney General may cancel removal in the
case of an alien who is inadmissible or deportable
from the United States 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 continu-
ously for 7 years after having been admitted
in any status, and
(3) has not been convicted of any aggra-
vated felony.
It is undisputed that Sinotes-Cruz has not been convicted of
an aggravated felony within the meaning of § 1229b(a)(3), so
the third requirement is not at issue.
[6] The permanent stop-time rule, enacted as part of
IIRIRA in 1996, provides that “continuous residence” shall be
deemed to end upon either service of a Notice to Appear (part
A) or commission of certain crimes (part B). Specifically,
§ 1229b(d)(1) provides:
For purposes of this section, any period of continu-
ous residence or continuous physical presence in the
United States shall be deemed to end (A) . . . when
the alien is served with a notice to appear under sec-
tion 1229(a) of this title, or (B) when the alien has
committed an offense referred to in section
1182(a)(2) of this title that renders the alien inadmis-
sible to the United States under section 1182(a)(2) of
this title or removable from the United States under
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section 1227(a)(2) or 1227(a)(4) of this title, which-
ever is earliest.
[7] Section 1229b(d)(1) does not apply to the five-year
requirement of § 1229b(a)(1) because it stops only the accrual
of “any period of continuous residence or continuous physical
presence.” The five-year requirement, by its terms, does not
require continuous residence or continuous physical presence.
Rather, it requires only lawful admission as a permanent resi-
dent.
Section 1229b(d)(1) does, however, apply to the seven-year
requirement of § 1229b(a)(2). Part A of § 1229b(d)(1) has no
effect on Sinotes-Cruz’s case because he was served with his
notice to appear long after he fulfilled the seven-year require-
ment. Only part B, which stops the accrual of time upon the
commission of certain crimes, can possibly affect Sinotes-
Cruz’s case.
[8] Sinotes-Cruz was first lawfully admitted “in any status”
in May 1988, when he was granted temporary resident status.
His seven-year period under § 1229b(a)(2) began to run at
that time. Either of his two 1993 crimes of attempted aggra-
vated assault qualifies as an offense under § 1227(a)(2). If the
permanent stop-time rule contained in part B of § 1229b(d)(1)
may be retroactively applied to Sinotes-Cruz, it stops the
accrual of his seven years of continuous residence after only
five years. The question before us is whether part B applies
retroactively to Sinotes-Cruz, who pled guilty to the 1993
crimes.
The BIA held in In re Perez, 22 I. & N. Dec. 689 (BIA
1999), that part B of § 1229b(d)(1) applies retroactively to
crimes committed before the enactment of IIRIRA, without
differentiating between convictions obtained after trial or pur-
suant to guilty pleas. But Perez was decided before the
Supreme Court held in INS v. St. Cyr, 533 U.S. 289, 326
(2001), that IIRIRA’s elimination of relief under § 212(c) did
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not operate retroactively against aliens who, before the enact-
ment of IIRIRA, had pled guilty to a deportable crime.
In this case, the BIA held in a short, unpublished one-
member per curiam order that part B applies retroactively to
Sinotes-Cruz’s 1993 conviction. It wrote only, “The Immigra-
tion Judge correctly found that the ‘stop-time’ rule applies to
the respondent notwithstanding the fact that he pled guilty to
aggravated assault in 1993, prior to the enactment of the Ille-
gal Immigration Reform and Immigrant Responsibility Act.”
For the reasons that follow, we disagree with the BIA’s con-
clusion.
[9] To determine whether application of part B of
§ 1229b(d)(1) to the seven-year continuous residence require-
ment of § 1229b(a)(2) would be impermissibly retroactive in
Sinotes-Cruz’s case, we look to the two-part analysis of Land-
graf v. USI Film Products, 511 U.S. 244 (1994). The first step
is to determine whether Congress has given a clear indication
that the law is to be applied retroactively. St. Cyr, 533 U.S.
at 316. The standard for finding such a clear indication is a
“demanding one.” Id. The statutory language must be so clear
that it “could sustain only one interpretation.” Id. at 317
(quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)); see
also Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2428
(2006). “Because a statute that is ambiguous with respect to
retroactive application is construed under our precedent to be
unambiguously prospective, Landgraf, 511 U.S., at 264, . . .
there is, for Chevron purposes, no ambiguity in such a statute
for an agency to resolve.” St. Cyr, 533 U.S. at 320 n.45. If the
language is “ambiguous with respect to retroactive applica-
tion,” we proceed to the second step of Landgraf. See id. at
320.
[10] At the second step, we determine whether the statute
would have an impermissible retroactive effect. “A retroactive
effect, as defined in Landgraf, is one that ‘would impair rights
a party possessed when he acted, increase a party’s liability
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for past conduct, or impose new duties with respect to trans-
actions already completed.’ ” Jimenez-Angeles, 291 F.3d at
601 (quoting Landgraf, 511 U.S. at 280). “The inquiry into
whether a statute operates retroactively demands a common-
sense, functional judgment about ‘whether the new provision
attaches new legal consequences to events completed before
its enactment.’ ” St. Cyr, 533 U.S. at 321 (quoting Martin v.
Hadix, 527 U.S. 343, 357-58 (1999) (quoting Landgraf, 511
U.S. at 270)) (internal quotation marks omitted).
[11] Applying Landgraf’s first step, we hold that part B of
§ 1229b(d)(1) is ambiguous with respect to its retroactivity.
As the Court pointed out in St. Cyr, numerous other provi-
sions of IIRIRA expressly state that they have retroactive
application. 533 U.S. at 318-20, 320 n.43. For example,
IIRIRA § 321(b), 8 U.S.C. § 1101(a)(43), states that IIRIRA’s
new definition of “aggravated felony” applies to “convic-
tion[s] . . . entered before, on, or after” the enactment of
IIRIRA. Id. at 319-20. By contrast, the text of § 1229b(d)(1)
(including part B) says nothing whatsoever about retroactive
application. Basing our analysis solely on the text of
§ 1229b(d)(1), we would have no trouble concluding that it is
ambiguous with respect to its retroactive application.
[12] We note, however, that IIRIRA § 309(c)(5), the transi-
tional stop-time rule analogous to the permanent stop-time
rule of § 1229b(d)(1), is explicit with respect to retroactivity.
In relevant part, it provides:
[P]aragraphs (1) and (2) of 240A(d) of the Immigra-
tion and Nationality Act [18 U.S.C. § 1229b(d)(1)
and (2)] (relating to continuous residence or physical
presence) shall apply to orders to show cause . . .
issued before, on, or after the date of the enactment
of this Act.
As originally adopted, this transitional rule referred to “no-
tices to appear” (“NTAs”) rather than to “orders to show
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cause” (“OSCs”). See IIRIRA § 309(c)(5), Pub. L. No. 104-
208, 110 Stat. 3009 (1996). But this reference made no sense
because NTAs were used to initiate proceedings under the
newly enacted IIRIRA, whereas the transitional rule was
designed to deal with proceedings initiated under the prior
statute. Ram v. INS, 243 F.3d 510, 515 (9th Cir. 2001). Pro-
ceedings under the prior statute were initiated by OSCs. The
original text of § 309(c)(5) was amended soon thereafter by
Section 203(f) of the Nicaraguan Adjustment and Central
American Relief Act of 1997 (“NACARA”), which replaced
“notices to appear” with “orders to show cause.” NACARA
§ 203(f), Pub. L. No. 105-100, 111 Stat. 2160 (1997).
We have interpreted the transitional stop-time rule in two
cases. First, in Ram, we held that, in proceedings covered by
the transitional rule, part A of § 1229b(d)(1) applies retroac-
tively. 243 F.3d at 518. Second, in Mendiola-Sanchez v. Ash-
croft, 381 F.3d 937, 941 (9th Cir. 2004), we held that, in
proceedings covered by the transitional rule, the 90/180-day
rule of § 1229b(d)(2) applies retroactively. See § 1229b(d)(2)
(“An alien shall be considered to have failed to maintain con-
tinuous physical presence in the United States under subsec-
tions (b)(1) and (b)(2) if the alien has departed from the
United States for any period in excess of 90 days or for any
periods in the aggregate exceeding 180 days.”).
We have never decided whether, in proceedings covered by
the transitional rule, part B of the § 1229b(d)(1) applies retro-
actively. That question is not directly presented by this case,
for Sinotes-Cruz is covered by the permanent stop-time rule
of § 1229b(d)(1) rather than by the transitional rule. But the
question is indirectly relevant to our decision here because in
Garcia-Ramirez v. Gonzales, 423 F.3d 935, 939-41 (9th Cir.
2005) (per curiam), we applied our interpretation of the transi-
tional rule in Mendiola-Sanchez to the permanent rule under
§ 1229b(d)(2). We wrote that “[a]lthough the transitional
rules do not directly govern Garcia-Ramirez’s case, it would
be incongruous to hold that Congress intended to apply the
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90/180-day rule to petitioners governed by those rules, but not
to Garcia-Ramirez.” Id. at 940. Under this line of reasoning,
if we were to conclude that (a) the transitional stop-time rule
clearly indicates that part B of § 1229b(d)(1) applies retroac-
tively to crimes in all circumstances, and that (b) it would be
“incongruous” not to apply our interpretation of the transi-
tional rule to the permanent rule, the necessary result would
be to conclude that the permanent rule applies retroactively to
Sinotes-Cruz’s case.
However, we do not agree with conclusion (a), above. For
two reasons, we conclude that the transitional rule does not
clearly indicate that it is to be applied retroactively to part B
of § 1229b(d)(1) in all circumstances.
[13] First, the text of the transitional rule is somewhat
opaque. It does not make clear that the rule is intended to
apply to part B of § 1229b(d)(1) at all, whether retroactively
or otherwise. The text of the transitional rule specifies that
“[§§ 1229b(d)(1) and (2)] (relating to continuous residence or
physical presence) shall apply to orders to show cause . . .
issued before, on, or after the date of the enactment of this
Act.” IIRIRA § 309(c)(5).
One possible reading of the transitional rule is that it
applies only to those portions of §§ 1229b(d)(1) and (2) that
are triggered by the issuance of an OSC. Under this reading,
part A of § 1229b(d)(1) operates retroactively by stopping the
accrual of time as of the time of the issuance of the OSC.
However, because the issuance of an OSC has no conse-
quence for the operation of either part B of § 1229b(d)(1) or
§ 1229b(d)(2), neither of these provisions has retroactive
effect. A problem with this reading is that it makes superflu-
ous the transitional rule’s reference to § 1229b(d)(2). Another
feature of this reading — which may be regarded as a prob-
lem by some — is that it gives a very limited retroactive
effect to the transitional rule, effectively limiting its retroac-
tive effect to cases in which OSCs were issued during the
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time between the passage of the Act on September 30, 1996,
and its effective date of April 1, 1997. See IIRIRA § 309(a).
Another possible reading of the text is that the transitional
rule applies to proceedings initiated by OSCs. Under this
reading, both parts of § 1229b(d)(1), as well as § 1229b(d)(2),
operate retrospectively. The problem with this reading is that
the text does not quite say this. The text says only that
§ 1229(d)(1) and (d)(2) “shall apply to orders to show
cause[.]” It does not say that § 1229b(d)(1) and (2) “shall
apply to proceedings initiated by orders to show cause.”
Without acknowledging this interpretive problem, we adopted
this second interpretation of the transitional rule in Ram and
Mendiola-Sanchez, applying the rule to proceedings initiated
by OCSs, both as to part A of § 1229b(d)(1) (Ram) and
§ 1229b(d)(2) (Mendiola-Sanchez). (The First Circuit has
done so, in addition, as to part B of § 1229b(d)(1). See
Peralta v. Gonzales, 441 F.3d 23, 29-32 (1st Cir. 2006).)
Given our decisions in Ram and Mendiola-Sanchez, it is obvi-
ous that we have concluded that this second interpretation of
the rule is the better reading; but this does not mean that its
text poses no interpretive problems.
Second, the logic behind Ram and Mendiola-Sanchez does
not require the conclusion that, in a case covered by the tran-
sitional rule, part B of § 1229b(d)(1) should be retroactively
applied to a criminal conviction based on a guilty plea. In
Ram, petitioners entered the United States in 1987 and then
overstayed their visas. They were served with an OSC in
1988. 243 F.3d at 512. Their proceeding was still pending as
of the passage of IIRIRA. Under pre-IIRIRA law, continuous
presence could be accrued toward the then-applicable seven-
year requirement up until the time of a petitioner’s application
for suspension of deportation, irrespective of the time of issu-
ance of an OSC. Id. at 513. If the old rule had been applied,
petitioners would have satisfied the then-applicable seven-
year requirement in 1994. We interpreted the transitional rule
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to apply retroactively, holding that the issuance of the OSC
cut off the accrual of time as of 1988. Id. at 516-17.
In Mendiola-Sanchez, petitioners entered the United States
in 1983. 381 F.3d at 938. In 1993, petitioners went to Mexico
to visit elderly parents. Because of injuries suffered by the
parents during the visit, petitioners stayed in Mexico for more
than 90 days. Id. Under pre-IIRIRA law, such an absence
would almost certainly have been considered “brief, casual,
and innocent,” and would not have interrupted the continuous
presence in the United States. See id. Under the transitional
rule, the period was interrupted by any absence from the
United States for more than 90 days. See § 1229b(d)(2) (90/
180-day rule). If the old rule had been applied, the petitioners
would have satisfied the requisite period of continuous pres-
ence. We interpreted the transitional rule retroactively, hold-
ing that petitioners’ absence interrupted their continuous
presence in the United States. Mendiola-Sanchez, 381 F.3d at
941.
But in Ram and Mendiola-Sanchez, the government’s and
the petitioners’ actions were undertaken independently of any
reciprocal action by the other party. In Ram, the government
simply served the OSC on the petitioners. In Mendiola-
Sanchez, the petitioners simply went to Mexico and stayed
there for more than 90 days. By contrast, in this case, Sinotes-
Cruz’s 1993 criminal conviction came as a result of a guilty
plea. “In exchange for some perceived benefit, [Sinotes-Cruz]
waive[d] several of [his] constitutional rights (including the
right to a trial) and grant[ed] the government numerous ‘tan-
gible benefits, such as promptly imposed punishment without
the expenditure of prosecutorial resources.’ ” St. Cyr, 533
U.S. at 322 (quoting Newton v. Rumery, 480 U.S. 386, 393
n.3 (1987)); cf. Jimenez-Angeles, 291 F.3d at 602.
[14] We therefore hold that the permanent stop-clock rule
contained in part B of § 1229b(d)(1) is ambiguous, within the
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meaning of Landgraf, with respect to its retroactive applica-
tion to a conviction obtained pursuant to a guilty plea.
We now proceed to step two of Landgraf. The precise
question is whether part B of § 1229b(d)(1) should be applied
retroactively to a conviction, obtained pursuant to a guilty
plea, for a crime that did not render an alien deportable at the
time of the plea. The key to our analysis is the Supreme
Court’s holding in St. Cyr. Before the enactment of IIRIRA,
St. Cyr pled guilty to a deportable offense. St. Cyr, 533 U.S.
at 292-93. Under the law at the time of his guilty plea, St. Cyr
was eligible to apply for waiver of deportation under § 212(c).
Id. at 293, 314-15. However, IIRIRA eliminated waiver of
deportation under § 212(c) and replaced it with the relatively
more stringent cancellation of removal. Id. at 297. The Court
held that in pleading guilty, thereby giving up his valuable
right to go to trial, St. Cyr did so in reliance on the availability
of a § 212(c) waiver. Id. at 321-22.
[15] St. Cyr involved a defendant who pled guilty to a
crime that made him deportable under then-existing law,
thereby directly triggering the necessity of § 212(c) relief. Id.
at 292-93, 314-15. We have extended the rationale of St. Cyr
to defendants who have pled guilty to less serious crimes than
St. Cyr’s — crimes that did not make them deportable at the
time of their plea and that therefore did not trigger, at the time
of the plea, the necessity for § 212(c) relief. In United States
v. Leon-Paz, 340 F.3d 1003, 1004 (9th Cir. 2003), Leon-Paz
had pled guilty to burglary and was sentenced to four years
in prison in 1995. At the time of his plea, his conviction and
sentence did not render him deportable, and there was there-
fore no necessity for § 212(c) relief. Id. at 1005. After the
enactment of IIRIRA, however, his burglary was reclassified
as an “aggravated felony,” and he was ordered removed by an
IJ based on that crime. Id. at 1004. After the IJ advised him
that he was not eligible for relief from removal, he did not
appeal the order. Id. In a later prosecution for unlawful reen-
try, we were called upon to determine “whether the IJ’s
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advice was correct.” Id. at 1005. We held that “it was not.”
Id.
We wrote that at the time of his plea, Leon-Paz had a “dou-
ble protection.” Id. When he pled guilty, Leon-Paz
had two bulwarks to protect himself against attacks
on his residence in this country. The first was the
fact that he had pled to a crime that was below the
aggravated felony threshold, and the second was
§ 212(c) itself in case the definition of aggravated
felony changed as it often had and has.
Id. at 1006. The new definition of aggravated felony in
IIRIRA was expressly made retroactive, but the elimination of
§ 212(c) relief was not. Relying on St. Cyr, we held that
§ 212(c) relief was available to Leon-Paz. Id.
Sinotes-Cruz is in a position analogous to that of Leon-Paz.
In 1993, he pled guilty to two counts of attempted aggravated
assault under Arizona law, and was given a suspended sen-
tence and four years probation. It is undisputed that at the
time of his plea, his conviction did not render him deportable.
See INA § 241(a)(2)(A)(i), 8 U.S.C. § 1251(a)(2)(A)(i)
(1993). IIRIRA, however, reclassified his crime, making him
removable under § 1227(a)(2)(A)(i) for having been con-
victed of a crime involving moral turpitude, committed within
five years of admission, for which a sentence of a year or lon-
ger could have been imposed. See 8 U.S.C. § 1251(a)(2)(A)(i)
(recodified in 8 U.S.C. § 1227(a)(2)(A)(i)). The parties do not
dispute that the retroactive application of the reclassification
of his crime under § 1227(a)(2)(A)(i) applies to Sinotes-Cruz,
so there is no question that Sinotes-Cruz is removable, just as
Leon-Paz was made removable by the retroactive reclassifica-
tion of his aggravated felony under § 1101(a)(43).
[16] Also like Leon-Paz, Sinotes-Cruz can seek relief from
removal if a different provision of IIRIRA has not been made
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retroactive. In Leon-Paz’s case, the provision at issue was
cancellation of removal, which repealed § 212(c). In Sinotes-
Cruz’s case, the provision at issue was the stop-time rule of
part B of § 1229b(d)(1), which stops accrual of the seven
years of continuous residence. In both cases, the repeal of
§ 212(c) and the application of the permanent stop-time rule
to the seven-year period, respectively, were unforeseeable at
the time of the guilty pleas. In both cases, Leon-Paz and
Sinotes-Cruz had, in pleading guilty, given up valuable rights,
including the right to go to trial, in the justifiable expectation
that their pleas would have no effect on their immigration sta-
tus. Further, in both cases, they were eligible for discretionary
relief when IIRIRA became effective. Finally, the retroactive
application of the repeal of § 212(c) and part B of the perma-
nent stop-time rule of § 1229b(d)(1) would have had serious
adverse consequences for both Leon-Paz and Sinotes-Cruz.
We therefore hold, based on St. Cyr, that part B of the stop-
time rule of § 1229b(d)(1) does not apply retroactively to the
seven-year continuous residence requirement of § 1229b(a)(2)
for an alien who pled guilty before the enactment of IIRIRA
and was eligible for discretionary relief at the time IIRIRA
became effective. We note that the only other published opin-
ion specifically addressing and analyzing this issue at step
two of Landgraf has come to the same conclusion. See Henry
v. Ashcroft, 175 F. Supp. 2d 688, 692-96 (S.D.N.Y. 2001).
But see Hernandez v. Gonzales, 437 F.3d 341 (3d Cir. 2006)
(contra without analysis).
The government is undoubtedly aware of our decision in
Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. 2004), for
that case was cited by Sinotes-Cruz in support of his argument
that we have jurisdiction over his petition. Yet the govern-
ment nowhere cites or relies on Toro-Romero in support of its
argument that part B of § 1229b(d)(1) operates retroactively.
Toro-Romero was a lawful permanent resident alien who pled
guilty in 1989 to burglary under California law. He took a day
trip to Mexico in 1997. Id. at 931. At the border upon his
return, Toro-Romero used another person’s birth certificate
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and claimed to be a United States citizen because, he later
claimed, he had lost his permanent legal resident card. The
border guards determined that he was not who he purported
to be. Id. Toro-Romero was later served with a Notice to
Appear, charging him with being inadmissible on two
grounds: (1) that he had been convicted of a crime involving
moral turpitude within the meaning of INA
§ 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), and (2)
that he had falsely represented himself as a United States citi-
zen for a purpose or benefit under federal law in violation of
INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii). Id.
The BIA affirmed the IJ’s holding that Toro-Romero was
inadmissible on the sole ground of his false representation of
citizenship. Id. at 932-33. It did not reach the question
whether he had been convicted of a crime involving moral
turpitude. Id. at 933. We held for two reasons that the BIA
should have reached the question whether Toro-Romero had
committed a crime of moral turpitude. One of those reasons
was that if he had committed such a crime he might not have
been qualified for cancellation of removal under the criteria
of §§ 1229b(a)(1) (the five-year period) and (a)(2) (the seven-
year period). Id. at 937. We assumed, incorrectly, that part B
of the permanent stop-time rule of § 1229b(d)(1) applies to
the five-year period of § 1229b(a)(1), and we assumed, with-
out discussion, that part B applies retroactively to both the
five- and seven-year periods of §§ 1229b(a)(1) and (a)(2). Id.;
cf. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1021 (9th Cir.
2005) (relying on Toro-Romero to apply part B of
§ 1229b(d)(1) to the seven-year period of § 1229b(a)(2)
where the alien pled guilty to a removable crime after the
enactment of IIRIRA). We agree with the government’s
implicit concession, evidenced by its failure to cite or rely on
Toro-Romero, that our assumptions in that case do not control
our retroactivity decision in this case. Because the retroactiv-
ity issue in Toro-Romero was not presented for review, was
not given reasoned consideration, and was unnecessary for the
decision, it is not binding precedent. See Barapind v. Eno-
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moto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per
curiam); see also United States v. Johnson, 256 F.3d 895, 914
(9th Cir. 2001) (en banc) (Kozinski, J., concurring) (defining
dictum as an unnecessary statement in a published opinion
that is not the result of “reasoned consideration”).
C. Simultaneous Application for Waiver of Deportation
Under § 212(c) and Cancellation of Removal Under
§ 1229b(a)
The BIA appears to have believed that a waiver of deporta-
tion under § 212(c) would have eliminated Sinotes-Cruz’s
1993 crime for purposes of the stop-time rule of part B of
§ 1229b(d)(1), thereby permitting him to accrue seven years
of continuous presence under § 1229b(a)(2) and potentially
making him eligible for cancellation of removal. The BIA
held, based on § 1229b(c)(6), that Sinotes-Cruz could not
apply simultaneously for both waiver of deportation under
§ 212(c) and cancellation of removal under § 1229b(a). We
do not need to reach that question, given our holding that the
permanent stop-time rule of part B of § 1229b(d)(1) does not
apply retroactively to stop accrual of time under
§ 1229b(a)(2).
Conclusion
We therefore grant the petition and remand to the BIA. We
hold only that Sinotes-Cruz is removable, and that the perma-
nent stop-time rule of part B of § 1229b(d)(1) does not apply
retroactively to stop his accrual of seven years of continuous
residence under § 1229b(a)(2). We do not otherwise deter-
mine Sinotes-Cruz’s eligibility for cancellation of removal.
We remand for further proceedings consistent with this opin-
ion.
PETITION GRANTED; REMANDED.
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