United States v. 2006-08-02 | 05-72395 | MALDONALDO-GALINDO VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RAFAEL MALDONADO-GALINDO,
Petitioner, No. 05-72395
v. Agency No.
 A17-246-042ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 5, 2006—San Francisco, California
Filed August 3, 2006
Before: Eugene E. Siler, Jr.,* Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
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COUNSEL
Andrew M. Jacobs and Jamie Heisler Ibrahim, Snell & Wil-
mer, Tucson, Arizona, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Linda S. Wendt-
land, Assistant Director, and Norah Ascoli Schwarz, Senior
Litigation Counsel, Department of Justice, Washington, D.C.,
for the respondent.
OPINION
BYBEE, Circuit Judge:
Petitioner Maldonado-Galindo (“Maldonado”) appeals the
Board of Immigration Appeals’ (“BIA”) denial of his petition
for cancellation of removal. Maldonado asserts that § 240A of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009
-546 (codified at 8 U.S.C. § 1229b (2000)) has an impermiss-
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ibly retroactive effect because it limits § 240A Cancellation of
Removal relief to those who have not previously been granted
relief under § 212(c) of the Immigration and Nationality Act
(“INA”) (codified at 8 U.S.C. § 1182(c) (repealed 1996)). We
deny the petition, finding that Congress has unmistakably lim-
ited § 240A relief to those who have not received § 212(c)
relief and that § 240A does not have a retroactive effect.
I. BACKGROUND
Maldonado is a citizen of Mexico and has been a lawful
permanent resident of the United States from the age of one.
In 1991, Maldonado was convicted of two unidentified crimes
involving moral turpitude which rendered him deportable.
INS subsequently commenced deportation proceedings, and
Maldonado applied for suspension of deportation under for-
mer § 212(c) of the INA. As then constituted, § 212(c) vested
the Attorney General with discretion to admit an otherwise
deportable alien who had a “lawful unrelinquished domicile
of seven consecutive years” in the United States, provided
that the alien had not been convicted of an aggravated felony
with a term of imprisonment of more than five years. 8 U.S.C.
§ 1182(c) (repealed 1996). Maldonado qualified for such
relief, and was granted a waiver of inadmissibility in January
1996.
On September 30, 1996, Congress enacted IIRIRA which,
inter alia, eliminated § 212(c) relief, and provided instead for
cancellation of removal under § 240A. Under the new statu-
tory scheme, § 240A(c)(6) cancellation of removal is unavail-
able to
An alien whose removal has previously been cancel-
led under this section or whose deportation was sus-
pended under section 1254(a) of this title or who has
been granted relief under [§ 212(c)] of this title, as
such sections were in effect before September 30,
1996.
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8 U.S.C. § 1229b(c)(6).
Between December 15, 1999 and January 12, 2004, Mal-
donado was convicted three times of unlawful possession of
narcotic paraphernalia and once of possession of a narcotic
drug. On July 26, 2004, the United States Immigration & Cus-
toms Enforcement (“ICE”) commenced removal proceedings
against Maldonado, who then applied for cancellation of
removal under § 240A. On December 14, 2004, an Immigra-
tion Judge found Maldonado ineligible for relief under
§ 240A because he had previously been granted relief under
§ 212(c). The BIA affirmed, and Maldonado filed the instant
appeal.
II. STANDARD OF REVIEW
Legal determinations regarding an alien’s eligibility for
cancellation of removal are reviewed de novo. Montero-
Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir. 2002).
III. DISCUSSION
Maldonado argues that § 240A is impermissibly retroac-
tive. First, he asserts that the language of § 240A(c)(6) is sus-
ceptible to two interpretations and does not express with
sufficient clarity the temporal scope of section 240A(c)(6). He
further asserts that § 240A’s unavailability where the appli-
cant had previously received § 212(c) relief attaches new
legal consequences to the prior receipt of relief and, as such,
is impermissibly retroactive. Id. Both assertions are without
merit.
[1] In Landgraf v. USI Film Products, 511 U.S. 244, 265
(1994), the Supreme Court noted that the “presumption
against retroactive legislation is deeply rooted in our jurispru-
dence.” Under Landgraf, the
determination of whether a regulation or statute is
impermissibly retroactive requires a two-step analy-
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sis. First, we must determine whether the statute or
regulation clearly expresses that the law is to be
applied retroactively. If it does, then the statute or
regulation may be applied as such. However, if the
statute or regulation does not contain an express
command that it be applied retroactively, we must go
to the second step which requires us to determine
whether the statute or regulation would have a retro-
active effect.
Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003) (cita-
tion omitted). The second stage of inquiry “demands a com-
monsense, functional judgment about whether the new
provision attaches new legal consequences to events com-
pleted before its enactment.” INS v. St. Cyr, 533 U.S. 289, 321
(2001) (citation and internal quotations omitted).
A. IIRIRA’s § 240A Exclusion Language Is Clear
Maldonado asserts that Congress did not use unmistakable
language in limiting § 240A relief because the statute is sus-
ceptible of two interpretations: (1) that previous receipt of
§ 212(c) relief strictly bars future receipt of § 240A Cancella-
tion of Removal; or (2) that the statute bars § 240A eligibility
for those aliens granted relief under Section 212(c) after the
enactment of IIRIRA.
[2] The statute is not ambiguous. Congress’s language indi-
cates as clearly as words can state that any receipt of § 212(c)
relief will foreclose § 240A relief: cancellation of removal is
unavailable to “[a]n alien whose removal has previously been
cancelled under this section . . . or who has been granted relief
under [§ 212(c)] of this title, as such sections were in effect
before September 30, 1996.” 8 U.S.C. § 1229b(c)(6). Further,
there was no period of overlap between § 212(c)’s repeal and
the initial availability of § 240A relief: both events transpired
simultaneously when IIRIRA became effective in April of
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1997. Thus, it does not appear that the language is susceptible
to two interpretations.
[3] Maldonado also argues that the limitation language in
§ 240A(c)(6) is equivocal because Congress did not use the
phrases “before, on, or after” or “regardless of when” in dis-
cussing § 240A’s limitations, as it had in other areas of
IIRIRA. Congress need not use a set phrase to indicate when
a statute is to be given retroactive effect; rather, the statute
need only evince Congress’s “clear intent” that legislation
apply in a retroactive manner. St. Cyr, 533 U.S. at 316 (2001)
(“A statute may not be applied retroactively . . . absent a clear
indication from Congress that it intended such a result.”);
Landgraf, 511 U.S. at 272-73 (“Requiring clear intent assures
that Congress itself has affirmatively considered the potential
unfairness of retroactive application and determined that it is
an acceptable price to pay for the countervailing benefits.”).
While that standard is a demanding one,1 it appears met in this
instance, where Congress stated unequivocally that an alien
may not have more than one bite at the cancellation of
removal/waiver of inadmissibility apple. Further, the context
of the § 212(c) restriction indicates that Congress intended all
instances of § 212(c) relief to foreclose § 240A cancellation.
See 8 U.S.C. § 1229b(c)(6) (proscribing cancellation for an
alien “whose removal has previously been cancelled under
this section . . . or who has been granted relief under
[§ 212(c)] of this title” (emphasis added)). Thus, under the
Court’s rationale in Landgraf and St. Cyr, the judicial pre-
sumption against the retroactive application of legislation is
inapposite because the arguably retroactive language is clear
and unmistakable.
1See St. Cyr, 533 U.S. at 316-17 (“ ‘[C]ases where this Court has found
truly ‘retroactive’ effect adequately authorized by statute have involved
statutory language that was so clear that it could sustain only one interpre-
tation.’ ” (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997)).
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B. Section 240A Does Not Have A Retroactive Effect
[4] Assuming, arguendo, that Congress did not clearly indi-
cate in § 240A that Cancellation of Removal is unavailable to
an alien who has received § 212(c) relief previous to
IIRIRA’s enactment, § 240A does not have a retroactive
effect. Where Congress does not evince a clear intent that leg-
islation have retroactive application, such legislation is imper-
missibly retroactive if it “takes away or impairs vested rights
acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability, in respect
to transactions or considerations already past.” Landgraf, 511
U.S. at 269 (quotations omitted). In considering a statute’s
retroactive effect, “the court’s analysis is to be guided by
three familiar considerations that the Supreme Court has
clearly enunciated: reasonable reliance, fair notice, and settled
expectations.” Chang v. United States, 327 F.3d 911, 920 (9th
Cir. 2003) (citation and internal quotation omitted).
In support of his argument that § 240A has an impermiss-
ibly retroactive effect, Maldonado points the panel to the
Supreme Court’s decision in St. Cyr, 533 U.S. 289. St. Cyr,
a citizen of Haiti, pled guilty to an aggravated felony charge
(a deportable offense) in order to secure a lower prison sen-
tence and thereby preserve his eligibility for § 212(c) relief.2
St. Cyr, 533 U.S. at 293. With the passage of IIRIRA,
§ 212(c) was repealed and St. Cyr’s aggravated felony convic-
tion precluded his access to the newly minted § 240A relief.
See 8 U.S.C. § 1229b(a)(3). The INS subsequently com-
menced removal proceedings against him, and St. Cyr applied
for § 212(c) relief; the BIA denied the request on the basis
that IIRIRA repealed § 212(c). St. Cyr, 533 U.S. at 293, 308.
After articulating the general presumption against giving
statutes retroactive effect, the St. Cyr Court reviewed the lan-
2Under § 212(c)’s strictures then in effect, St. Cyr would qualify for
§ 212(c) relief if the prison sentence was less than five years.
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guage of IIRIRA and concluded that Congress did not give
sufficient indication that it intended the repeal of § 212(c) to
apply retroactively. Id. at 315-20. The Court then proceeded
to examine whether the repeal of § 212(c) operates retroac-
tively. Id. at 320-21. In making that inquiry, the St. Cyr Court
focused almost exclusively on reliance and expectation inter-
est of those who, like St. Cyr, entered into plea bargains in
order to specifically preserve the availability of § 212(c) relief
should deportation proceedings be commenced against them.
Id. at 321-23. Given that prosecutors had already benefitted
from such agreements, the Court concluded that “it would
surely be contrary to ‘familiar considerations of fair notice,
reasonable reliance, and settlement expectations’ to hold that
IIRIRA’s subsequent restrictions deprived [qualifying aliens]
of any possibility of [§ 212(c)] relief.” Id. at 323-24 (quoting
Landgraf, 511 U.S. at 270). The Court then concluded that
because “respondent, and other aliens like him, almost cer-
tainly relied upon that likelihood in deciding whether to forgo
their right to a trial, the elimination of any possibility of
§ 212(c) relief by IIRIRA has an obvious and severe retroac-
tive effect,” id. at 325, and held that “§ 212(c) relief remains
available for aliens, like respondent, whose convictions were
obtained through plea agreements and who, notwithstanding
those convictions, would have been eligible for § 212(c) relief
at the time of their plea under the law then in effect.” Id. at
326.
[5] Maldonado does not assert that he remains entitled to
§ 212(c) relief after its repeal or that he is entitled to any other
relief existing previous to IIRIRA’s passage. Rather, Mal-
donado claims that his former receipt of § 212(c) relief should
not bar him from receiving a wholly new form of relief,
§ 240A’s Cancellation of Removal. Given that Maldonado
could not have relied upon the future availability of § 240A
when he applied for § 212(c) relief in January 1996, § 240A
cannot have an impermissibly retroactive effect. Maldonado
gave up nothing in return for his § 212(c) relief. Indeed, it is
preposterous to think that he would have foregone § 212(c)
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relief in January 1996 (resulting in him being found inadmis-
sible) on the chance that Congress might at some future date
offer § 240A relief for those who hadn’t previously accepted
§ 212(c) relief. “[A]pplication of new statutes passed after the
events in suit is unquestionably proper in many situations.
When the intervening statute authorizes or affects the propri-
ety of prospective relief, application of the new provision is
not retroactive.” Landgraf, 511 U.S. at 273 (emphasis added).
Finally, Maldonado argues that § 240A should be deemed
retroactive because it upset settled expectations. Maldonado
contends that many avenues of relief from deportation were
available to aliens prior to 1996, and that, had Maldonado
known that relief under § 212(c) would bar future eligibility
for relief from deportation, he would have applied for an
alternative form of relief. His argument is unavailing. Mal-
donado has not indicated what other relief was available,
whether he qualified for such relief, and whether receipt of
the alternative relief would also bar § 240A cancellation.
IV. CONCLUSION
In crafting § 240A, Congress evinced a clear intent that
prior receipt of § 212(c) relief would foreclose access to
§ 240A relief. Such a statutory scheme is not impermissibly
retroactive because Congress’ intent is clear, the relief is pro-
spective, and Maldonado did not rely upon the future avail-
ability of § 240A relief when he sought for and received
§ 212(c) relief. Accordingly, Maldonado’s petition is
DENIED.
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