1 The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-3378

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Salvador Torres-Rascon,

Appellant,

v.

Michael Heston, District Director

of Kansas City District Office of

Immigration and Naturalization

Service; James W. Ziglar,

Commissioner of Immigration and

Naturalization Service; John

Ashcroft, Attorney General of the

United States,

Appellees.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: March 10, 2003

 Filed: July 3, 2003 

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Before HANSEN, Chief Judge,1

 RILEY and MELLOY, Circuit Judges.

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HANSEN, Circuit Judge.
2

 The Honorable Scott O. Wright, United States District Judge for the Western

District of Missouri.

2

Salvador Torres-Rascon is a Mexican citizen who entered the United States in

1965 and became a lawful permanent resident. In 1991, he pleaded guilty to federal

charges of distributing and conspiring to distribute cocaine, and he was sentenced to

ninety-seven months in prison. When Torres-Rascon was released from prison in

1998 after serving seventy-eight months of his sentence, he was taken into custody

by the Immigration and Naturalization Service, which initiated proceedings to remove

him based on these convictions.

The immigration judge (IJ) found that Torres-Rascon was removable, and that

he was ineligible for a waiver of removal under 8 U.S.C. § 1182(c) (1994) because

he had been convicted of aggravated felonies for which he had served more than five

years in prison. Torres-Rascon appealed to the Board of Immigration Appeals (BIA),

arguing that he was eligible for a § 1182(c) waiver under INS v. St. Cyr, 533 U.S. 289

(2001). The Board rejected his argument and dismissed his appeal. Torres-Rascon

renewed this argument in a 28 U.S.C. § 2241 petition for a writ of habeas corpus,

which the district court2

 denied. He now appeals, and for the reasons discussed

below, we affirm the judgment of the district court.

I.

St. Cyr held that, in enacting the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Congress prospectively eliminated aliens'

eligibility for § 1182(c) waivers but did not retroactively eliminate the eligibility of

aliens who pleaded guilty prior to IIRIRA. The record in the instant case clearly

shows that the IJ and the BIA complied with St. Cyr by evaluating Torres-Rascon's

eligibility for a § 1182(c) waiver under the version of the law in effect at the time of

his guilty plea, which provided that he was ineligible because he had been "convicted
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of one or more aggravated felonies and ha[d] served for such felony or felonies a term

of imprisonment of at least 5 years." 8 U.S.C. § 1182(c) (1994).

Torres-Rascon argues, however, that St. Cyr did more than hold that IIRIRA

did not retroactively eliminate § 1182(c) waivers. He focuses on the Supreme Court's

statement that § 1182(c) waivers remain available for aliens "whose convictions were

obtained through plea agreements and who, notwithstanding those convictions, would

have been eligible for [§ 1182(c) waivers] at the time of their plea under the law then

in effect." St. Cyr, 533 U.S. at 326. According to Torres-Rascon, this passage means

that an alien who had not served five or more years in prison for an aggravated felony

by the time of his guilty plea remains eligible for a § 1182(c) waiver even if he has

served five or more years in prison for the aggravated felony by the time he is

subjected to removal proceedings and requests the waiver.

We think that Torres-Rascon reads the St. Cyr passage completely out of

context and urges an absurd reading of § 1182(c). Under his reading, there would be

only two groups of aliens ineligible for a waiver: (1) those who had already served

five years or more in prison for an aggravated felony before pleading guilty to that

aggravated felony, and (2) those who had served five years or more in prison for an

earlier aggravated felony and then pleaded guilty to another aggravated felony which

led to their removal. We are aware of nothing in the statutory language, legislative

history, or interpretive caselaw suggesting that Congress meant to restrict ineligibility

only to aliens who languished in prison for five years or more before entering their

guilty pleas (which we hope is a small group indeed) and aliens who were convicted

of multiple aggravated felonies. We think that the commonsensical reading of

§ 1182(c) is the correct one: an alien like Torres-Rascon is ineligible for a waiver

because he was convicted of aggravated felonies for which he had served more than

five years in prison by the time he was subjected to removal proceedings and

requested the waiver.
4

In addition to St. Cyr, Torres-Rascon relies on In re Ramirez-Somera, 20 I&N

Dec. 564 (BIA 1992). There, the BIA held that an alien who pleaded guilty to an

aggravated felony and was sentenced to five or more years in prison, but who had

served less than five years in prison by the time of his removal hearing, remained

eligible for a § 1182(c) waiver. See id. at 566. Ramirez-Somera's holding does not

help Torres-Rascon, who had served more than five years of his prison sentence by

the time of his removal hearing and was therefore ineligible for a § 1182(c) waiver.

In fact, Ramirez-Somera undercuts Torres-Rascon's argument because, in that case

as in this case, the BIA looked to the amount of imprisonment the alien had served

by the time of his removal hearing, not by the time of his guilty plea.

II.

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.