FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL VALENCIA-ALVAREZ, 

Petitioner, No. 05-70275

v. Agency No.  A42-909-915 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 7, 2006—Seattle, Washington

Filed December 6, 2006

Before: David R. Thompson, A. Wallace Tashima, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

19189
COUNSEL

Bernice Funk, Seattle, Washington, for the petitioner. 

Peter D. Keisler, David V. Bernal, Russell J.E. Verby, Cindy

S. Ferrier, Department of Justice, Washington, D.C., for the

respondent.

19192 VALENCIA-ALVAREZ v. GONZALES
OPINION

CALLAHAN, Circuit Judge: 

Petitioner, Daniel Valencia-Alvarez, a native and citizen of

Mexico, seeks relief from the Board of Immigration Appeals’

determinations that he was removable for having been convicted of a controlled substance offense and that he was ineligible for cancellation of removal because his continuous

presence in the United States “stopped” at the time he committed the offense. On appeal, Valencia-Alvarez basically

advances two arguments. First, he contends that respondent

was barred by res judicata from asserting additional charges

after the Board of Immigration Appeals (“BIA”) held that his

underlying conviction was not an aggravated felony. Second,

Valencia-Alvarez argues that the provision of 8 U.S.C.

§ 1229b(d)(1), enacted as part of the Illegal Immigration

Reform and Immigration Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, which “stops” an alien’s

accrual of continuous presence in the United States at the time

that he commits a crime (sometimes referred to as the “committed an offense” provision), may not be applied retroactively to his 1996 offense. We reject the first argument

because the BIA’s 2002 decision was not a final judgment

rendered on the merits in a separate action. We reject the second argument because the retroactive application of the “committed an offense” provision to Valencia-Alvarez does not

impair any right he possessed when he committed the offense,

or when IIRIRA was enacted. Accordingly, the petition for

review is denied.

I

Valencia-Alvarez was admitted to the United States on July

4, 1991, and is a lawful permanent resident. On May 9, 1997,

he was convicted of a drug offense involving heroin, in violation of § 11352 of California’s Health and Safety Code.

VALENCIA-ALVAREZ v. GONZALES 19193
Valencia-Alvarez’s criminal activity took place on December

9, 1996. He received a three-year sentence. 

On July 29, 1998, the Immigration and Naturalization Service1

 (the Service) charged Valencia-Alvarez with being

removable for having been convicted of an aggravated felony

as defined by 8 U.S.C. § 1101(a)(43). On December 18, 1998,

the Immigration Judge (IJ) issued a decision finding that

Valencia-Alvarez had been convicted of an aggravated felony.

Valencia-Alvarez appealed to the BIA. On August 6, 2002,

the BIA found the record insufficient to support the IJ’s conclusion that Valencia-Alvarez’s conviction was for an aggravated felony and remanded to the IJ for further proceedings.

Three days later, the IJ issued an order noting that regardless of whether Valencia-Alvarez’s conviction was for an

aggravated felony, he might be removable because his conviction was for a controlled substance offense. The Service was

advised that if it intended to file additional charges, it should

do so promptly. On August 13, 2002, the Service filed additional charges alleging, inter alia, that Valencia-Alvarez was

removable for having been convicted of an offense relating to

a controlled substance in violation of 8 U.S.C.

§ 1227(a)(2)(B)(i). On September 5, 2002, the IJ issued a

decision holding that under Ninth Circuit law, ValenciaAlvarez’s conviction was neither an aggravated felony nor “a

drug-related removable offense.” 

This time the Service appealed to the BIA. In its March 25,

2004 decision, the BIA rejected Valencia-Alvarez’s argument

that the Service was barred from lodging additional charges,2

1Pursuant to the Department of Homeland Security Reorganization

Plan, as of March 1, 2003, the Service was abolished and its functions

were transferred to the Department of Homeland Security. See 6 U.S.C.

§ 542. 

2The BIA noted: 

19194 VALENCIA-ALVAREZ v. GONZALES
and agreed with the IJ that the conviction was not for an

aggravated felony. The BIA, however, held that ValenciaAlvarez was removable under § 1227(a)(2)(B)(i) because his

conviction was related to a controlled substance. The BIA

remanded the case to the IJ “to determine [ValenciaAlvarez’s] eligibility for any form of relief from removal.” 

On remand, the IJ noted that this was the third time

Valencia-Alvarez had been before him. The IJ observed that

he was not in a position to review the BIA’s determination

that Valencia-Alvarez’s conviction was a crime involving a

controlled substance. Rather, he addressed whether ValenciaAlvarez had a “stop time” problem with meeting the sevenyear continuous residency requirement for cancellation of

removal eligibility. 

The crucial criterion for Valencia-Alvarez’s eligibility for

cancellation of removal under 8 U.S.C. § 1229b(a) was

whether he had seven years of continuous residency in the

United States.3 The IJ determined that he did not have the requisite continuous residency in the United States because, pursuant to 8 U.S.C. § 1229b(d)(1)(B), his residency had

“stopped” when he committed the offense.4 The IJ also

We find no merit to [Valencia-Alvarez’s] contention that the

[Department of Homeland Security] may not lodge additional

charges. Federal regulations provide that additional or substituted

charges of removability may be lodged by the [Department of

Homeland Security] in writing at any time during the removal

proceedings. 8 C.F.R. § 1003.30. 

3Section 1229b(a) provides that the Attorney General may cancel

removal of an alien who has been lawfully admitted for permanent residence for not less than five years, has resided in the United States continuously for seven years, and has not been convicted of any aggravated

felony. Valencia-Alvarez had been lawfully admitted for more than five

years and the BIA had determined that his conviction was not for an

aggravated felony. 

4Section 1229b(d)(1) reads: 

VALENCIA-ALVAREZ v. GONZALES 19195
rejected Valencia-Alvarez’s argument that “because he was

not placed in removal proceedings until 1998, the stop-time

principle should not be applied to him.” Finally, the IJ noted

that even if Valencia-Alvarez could somehow qualify for preIIRIRA suspension of deportation, he would then face the barrier of old INA section 241(a)(2) [8 U.S.C. § 1254 (repealed

by IIRIRA § 308(b)(7))], which required “continuous presence of not less than 10 years immediately following the commission of the act.” The IJ ordered Valencia-Alvarez’s

removal to Mexico. 

Valencia-Alvarez appealed to the BIA, which affirmed the

IJ’s decision without an opinion. He then filed a timely petition for review with this court.

II

Pursuant to 8 U.S.C. § 1252(a)(2)(C), we have jurisdiction

to review constitutional claims and claims of law raised in a

timely petition for review. We agree with the parties that we

have jurisdiction to consider the statutory and legal issues

raised by petitioner in this case.5 Because the BIA affirmed

the IJ’s decision without an opinion, we review the IJ’s opinFor purposes of this section, any period of continuous residence

or continuous physical presence in the United States shall be

deemed to (end (A) except in the case of an alien who applies for

cancellation of removal under subsection (b)(2) of this section,

when the alien is served a notice to appear under section 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

inadmissible to the United States under section 1182(a)(2) of this

title or removable from the United States under section

1227(a)(2) or 1227(a)(4) of this title, whichever is earliest. 

(Emphasis added). 

5On appeal, Valencia-Alvarez does not challenge the factual determination that his underlying conviction involved a controlled substance. 

19196 VALENCIA-ALVAREZ v. GONZALES
ion as the final agency decision. Circu v. Gonzales, 450 F.3d

990, 993 (9th Cir. 2006) (en banc). 

As an initial matter, we reject Valencia-Alvarez’s objections to the BIA’s “streamlining” of his appeal. In Falcon

Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003), we

held that “streamlining does not violate an alien’s due process

rights.” Furthermore, Valencia-Alvarez has not shown that we

cannot adequately determine the BIA’s reasons for denying

him relief, Lanza v. Ashcroft, 389 F.3d 917, 932 (9th Cir.

2004), or that this is an instance in which the BIA abused its

own regulations in streamlining the appeal. Chong Shin Chen

v. Ashcroft, 378 F.3d 1081, 1087 (9th Cir. 2004).

III

Valencia-Alvarez, relying heavily on a district court decision, Murray v. Ashcroft, 321 F. Supp. 2d 385 (D. Conn.

2004), argues that the doctrine of res judicata barred the government from filing additional charges against him following

the BIA’s August 6, 2002 opinion. In essence, he contends

that the August 6, 2002 opinion was a final decision and that

thereafter res judicata barred respondent from bringing any

charges against him that could have been included with the

initial charges.6

6Res judicata or claim preclusion bars a subsequent action “not only as

to every matter which was offered and received to sustain or defeat the

claim or demand, but as to any other admissible matter which might have

been offered for that purpose.” Cromwell v. County of Sac., 94 U.S. 351,

352 (1877); see 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE

§ 131.01 (3d ed. 2006). Claim preclusion is sometimes confused with

issue preclusion, which bars a subsequent action on an issue that was actually and necessarily determined in the first action. See 18 JAMES WM. MOORE

ET AL., MOORE’S FEDERAL PRACTICE § 132.01[1] (3d ed. 2006). ValenciaAlvarez asserts claim preclusion, not issue preclusion, as it is clear that the

BIA’s decision did not actually and necessarily determine whether the

underlying conviction concerned a controlled substance. 

VALENCIA-ALVAREZ v. GONZALES 19197
[1] The criteria for the application of res judicata, which are

not fully set forth in Murray, are that there be a final judgment, rendered on the merits in a separate action. See 18

JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE,

§§ 131.30[2]- [3], 131.31[1] (3d ed. 2006); see also Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 (1981)

(noting that the Ninth Circuit had recognized that the “ ‘technical elements’ of res judicata had been satisfied, namely, that

the decision . . . [is] a final judgment on the merits and

involved the same claims and the same parties as [the second

case]”). 

[2] None of these criteria is met here. First, the BIA’s

August 6, 2002 opinion sustaining Valencia-Alvarez’s appeal

was not a final judgment. It concluded with the statement “the

record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the

entry of a new decision.” Second, the opinion was not a dispositive decision on the merits as it states: 

Given the change of law in the Ninth Circuit, and the

ambiguity of the conviction documents, a remand is

warranted for further evidence -regarding the respondent’s conviction and whether he is removable as

charged. 

The lack of a final disposition is reflected in the fact that the

parties continued to litigate the matter. On remand, the IJ held

that Valencia-Alvarez’s conviction was neither an aggravated

felony nor a drug-related offense. On appeal, the BIA

affirmed that the conviction was not an aggravated felony, but

held that the conviction was related to a controlled substance.

Third, Valencia-Alvarez’s first appeal to the BIA was not a

separate action. Rather, the BIA’s August 6, 2002 opinion

was the first of three BIA decisions in this single case, which

is now before us. Thus, the BIA’s 2002 opinion did not bar

the Service from bringing additional charges against

19198 VALENCIA-ALVAREZ v. GONZALES
Valencia-Alvarez because that opinion was not a final decision on the merits in a separate action.7

IV

[3] Prior to IIRIRA’s effective date, April 1, 1997, an alien

in deportation proceedings continued to accrue time toward

satisfying the seven-year residency requirement for suspension of deportation during the pendency of his or her immigration proceedings. Jimenez-Angeles v. Ashcroft, 291 F.3d

594, 598 (9th Cir. 2002). IIRIRA eliminated suspension of

deportation and replaced it “with a similar (though somewhat

more burdensome) kind of relief known as ‘cancellation of

removal.’ ” Lopez-Castellanos v. Gonzales, 437 F.3d 848, 851

(9th Cir. 2006). IIRIRA, however, also contained a “stopclock” provision which provides that an alien ceases to accrue

time toward the residency requirement when (A) the alien is

served with a notice to appear, or (B) when the alien commits

one of a number of criminal offenses.8 8 U.S.C.

§ 1229b(d)(1). In Jimenez-Angeles, we determined that the

retroactive application of the “notice to appear” provision,

§ 1229b(d)(1)(A), was permissible. Id. at 602. Here, we consider the retroactive application of the “committed an offense”

provision, § 1229b(d)(1)(B). 

7

In light of this conclusion, we need not determine whether the BIA’s

2002 opinion, if final, would have barred the Service from asserting additional issues. We note, however, that we have indicated that in the administrative law context, “the principles of collateral estoppel and res judicata

are applied flexibly.” Artukovic v. INS, 693 F.2d 894, 898 (9th Cir. 1982);

see also Ramon-Sepulveda v. INS, 863 F.2d 1458, 1460 (9th Cir. 1988)

(noting that res judicata is applied flexibly in the administrative sphere,

but requiring that the agency’s position must be substantially justified). 

8Pursuant to 8 U.S.C. § 1229b(d)(1) an alien’s accrual of continuous

presence ceases when the alien commits an offense “referred to in section

1182(a)(2) of this title that renders the alien inadmissible to the United

States under section 1182(a)(2) of this title[.]” 8 U.S.C. § 1182(a)(2)(A)

(i)(II) specifies that an alien is inadmissible if he or she commits a violation “relating to a controlled substance[.]” Valencia-Alvarez does not deny

that his offense is one that is covered by §§ 1182(a)(2) and 1229b(d)(1).

VALENCIA-ALVAREZ v. GONZALES 19199
The Supreme Court has noted that “[d]espite the dangers

inherent in retroactive legislation, it is beyond dispute that,

within constitutional limits, Congress has the power to enact

laws with retrospective effect.” INS v. St. Cyr, 533 U.S. 289,

316 (2001). In Landgraf v. USI Film Prods., 511 U.S. 244,

280 (1994), the Supreme Court set forth a two-step approach

to evaluating the retroactive application of a statute. The

Court recently reiterated this approach in Fernandez-Vargas

v. Gonzales, 126 S. Ct. 2422 (2006):

This Court has worked out a sequence of analysis

when an objection is made to applying a particular

statute said to affect a vested right or to impose some

burden on the basis of an act or event preceding the

statute’s enactment. We first look to “whether Congress has expressly prescribed the statute’s proper

reach,” Landgraf, supra, at 280, . . . and in the

absence of language as helpful as that we try to draw

a comparably firm conclusion about the temporal

reach specifically intended by applying “our normal

rules of construction,” Lindh v. Murphy, 521 U.S.

320, 326 . . . (1997). If that effort fails, we ask

whether applying the statute to the person objecting

would have a retroactive consequence in the disfavored sense of “affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before

[its] enactment,” Landgraf, supra, at 278, . . . see

also Lindh, supra, at 326[.] 

Id. at 2428 (alterations in original). 

[4] In Garcia-Ramirez v. Gonzales, 423 F.3d 935, 939 (9th

Cir. 2005), we explained this approach as follows:

[T]he Court articulated a two-step approach for evaluating when the normal presumption against retroactivity should not apply. Our “first task” under

Landgraf is to “determine whether Congress has

19200 VALENCIA-ALVAREZ v. GONZALES
expressly prescribed the statute’s proper reach.”

Landgraf, 511 U.S. at 280, . . . . If Congress has

clearly expressed that a law should be applied to

conduct occurring before its enactment, our inquiry

ends and we must defer to Congress’ command. Otherwise, we proceed to Landgraf’s second step and

ask “whether the new statute would have retroactive

effect, i.e., whether it would impair rights a party

possessed when he acted, increase a party’s liability

for past conduct, or impose new duties with respect

to transactions already completed.” Id. If the new

law would have such a retroactive effect, the “traditional presumption teaches that [the new statute]

does not govern[.]” Id.

[5] A critical feature of this standard is that we must proceed to the second step of the Landgraf approach unless Congress’s intent that the statute be given retroactive application

is clear. In other words, ambiguity as to a statute’s retroactive

application does not bar its retroactive application unless

doing so “would impair rights a party possessed when he

acted[.]” Landgraf, 511 U.S. at 280; see also LopezCastellanos, 437 F.3d at 853 (“When, however, the statute

contains no such express command, the court must determine

whether the new statute would have retroactive effect, i.e.,

whether it would impair rights a party possessed when he

acted, increase a party’s liability for past conduct, or impose

new duties with respect to transactions already completed.”);

Peralta v. Gonzales, 441 F.3d 23, 29 (1st Cir. 2006) (same).

The BIA has held that § 1229b(d) ends an alien’s continuous physical presence for cancellation of removal eligibility

as of the date of his or her commission of an offense, even if

the offense was committed prior to the enactment of IIRIRA.

In re Perez, 22 I. & N. Dec. 689, 700 (BIA 1999). Respondent

argues that the BIA’s position is entitled to deference pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 844 (1984). We do not find the

VALENCIA-ALVAREZ v. GONZALES 19201
BIA’s opinion dispositive. We have noted that “Chevron deference is predicated on the assumption that a statute’s

ambiguity constitutes an ‘implicit delegation’ to the agency to

interpret the statute.” Castro-Cortez v. INS, 239 F.3d 1037,

1053 (9th Cir. 2001) (citing Food & Drug Admin. v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). The

Landgraf test requires determinations first of Congress’s clear

intent, and second, of the impact of retroactive effect on the

alien’s rights. Respondent has not shown that the BIA is

authorized by Congress to decide these issues. 

Moreover, Valencia-Alvarez disagrees with respondent’s

interpretation of the statute. He argues that the clock-stopping

provision contained no language addressing its retroactive

applicability and that the IIRIRA Transitional Rules addressing the retroactive application of notice to appear provision,

§1229b(d)(1)(A), are silent as to the “committed an offense”

provision, §1229b(d)(1)(B). He further argues that the Nicaraguan Adjustment and Central American Relief Act

(“NACARA”), Pub. L. 105-100 (1997), amending IIRIRA’s

Transitional Rules, is also silent as to the retroactivity of the

“committed an offense” provision.9

9The provision of the IIRIRA Transitional Rules at issue states: “Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality

Act [8 U.S.C. § 1229b(d)(1) and (2)] (relating to continuous residence or

physical presence) shall apply to notices to appear issued before, on, or

after the date of the enactment of this Act.” Pub L. 104-208 (1996), 1996

H.R. 3610. 

Similarly, the relevant provision of NACARA states: “Paragraphs (1)

and (2) of section 240(d) of the Immigration and Nationality Act shall

apply to orders to show cause . . . issued before, on, or after the date of

enactment of this Act.” NACARA § 203, Pub L. 105-100, 111 Stat. 2160

(1997). 

Valencia-Alvarez argues that the provisions’ failure to address the

“committed an offense” provision, 8 U.S.C. § 1229b(d)(1)(B), meant that

Congress intended that the clause not be retroactive. 

19202 VALENCIA-ALVAREZ v. GONZALES
Our determination as to Congress’s intent under the first

prong of the Landgraf test is controlled by our opinion in

Jimenez-Angeles, which concerned the retroactive application

of the notice to appear provision of § 1229b(d)(1)(A). After

reviewing the Supreme Court’s approach to IIRIRA in St.

Cyr, 533 U.S. at 317-20, we held that, despite the existence

of the Transitional Rules, “IIRIRA does not state with sufficient clarity that its repeal of § 1254 suspension of deportation

relief is intended to apply to an alien in Jimenez-Angeles’

position, such that it must be applied even if its operation is

retroactive.” 291 F.3d at 601. Even assuming that the holding

in Jimenez-Angeles could be distinguished, we would not be

able to conclude, as required by St. Cyr, that the statutory language is “so clear that it could sustain only one interpretation.” 533 U.S. at 317 (quoting Lindh, 521 U.S. at 328 n.4).10

[6] Nonetheless, Valencia-Alvarez’s request for relief fails

because he cannot meet the second prong of the Landgraf

standard: he cannot show that retroactive application of the

“committed an offense” provision to him would impair any of

his rights. Two features of Valencia-Alvarez’s position preclude relief. First, unlike the plea at issue in St. Cyr, where the

alien arguably bargained for something on the basis of existing immigration law, Valencia-Alvarez cannot assert that he

relied on existing immigration law when he decided to com10The Supreme Court reached a similar position in Fernandez-Vargas

concerning a different provision of IIRIRA, when it noted that “IIRIRA

sometimes expressly made changes prospective as from the effective date

and sometimes expressly provided they were applicable to earlier acts . . . .

With such a variety of treatment, it is just too hard to infer any clear intention at any level of generality from the fact of retiring the old before-orafter language from what is now § 241(a)(5).” 126 S. Ct. at 2430. Similarly, in Hernandez v. Gonzales, 437 F.3d 341, 351 (3d Cir. 2006), the

Third Circuit held that Congress had not clearly indicated that IIRIRA’s

repeal of the suspension of deportation provision there at issue should

have retroactive application. The First Circuit, however, has held that the

“committed an offense” provision, § 1229b(d)(1)(B), was clearly intended

to be retroactive. Peralta, 441 F.3d at 31. 

VALENCIA-ALVAREZ v. GONZALES 19203
mit a crime. Second, following his commission of a crime,

Valencia-Alvarez has never been eligible for discretionary

relief. We find these features to be determinative and hold

that the “stop-clock” provision bars Valencia-Alvarez from

being eligible for discretionary relief. 

The importance of the first feature is established by our

opinion in Jimenez-Angeles. There, the alien presented herself

to the Service shortly before IIRIRA became effective, hoping

that the Service would bring proceedings against her before

IIRIRA’s more stringent provisions for discretionary relief

took effect. 291 F.3d at 597. The Service, however, did not

serve Jimenez-Angeles with a notice to appear until well after

IIRIRA’s effective date. The BIA found her removable and

denied her request for cancellation of removal under IIRIRA’s

new provisions (requiring ten instead of seven years of continuous physical presence for an alien who was not a legal

permanent resident). Id. 

On review by this court, Jimenez-Angeles argued that the

application of the new provisions to her was impermissibly

retroactive. Id. at 598. We held that retroactive application of

IIRIRA’s provisions was permissible under the second step of

the Landgraf test, explaining:

When St. Cyr entered into his plea bargain, he gave

up valuable legal rights, including his right to trial by

jury. By contrast, when Jimenez-Angeles revealed

herself to the INS, she gave up only her ability to

continue living illegally and undetected in the United

States. 

Id. at 602. This case presents a similar situation because

Valencia-Alvarez cannot argue that he gave up any legal right

when he decided to commit a crime. 

The critical nature of the fact that Valencia-Alvarez has

never been eligible for discretionary relief is also indicated in

19204 VALENCIA-ALVAREZ v. GONZALES
Jimenez-Angeles. After noting that Jimenez-Angeles had not

given up any valuable legal right in revealing herself to the

INS, we reasoned:

[A]lthough Jimenez-Angeles may have had an

expectation (or at least a hope) that suspension of

deportation would be available to her when she

turned herself in voluntarily less than one month

before IIRIRA’s effective date, that expectation (or

hope) was not equivalent to the settled expectation

St. Cyr gained by entering into his plea bargain

before that date. 

Id. Here, Valencia-Alvarez had only the hope that, had

IIRIRA not been enacted, he might remain in the United

States long enough to possibly qualify for discretionary relief

from deportation. 

The importance of the vesting of an alien’s right is also

reflected in the Third Circuit’s recent opinion in Hernandez

v. Gonzales, 437 F.3d 341 (3d Cir. 2006). Hernandez entered

the United States in 1974 as a visitor and remained beyond his

authorization. Id. at 343. In 1984, he pleaded guilty to

attempted criminal possession of a controlled substance. Id. In

1997, Hernandez married a United States citizen and then

applied for an adjustment of status. Id. In 1999, the application was denied and removal proceedings were commenced.

Id. at 343-44. Hernandez was found to be removable and not

eligible for discretionary relief. Id. at 344. The Third Circuit

noted that prior to IIRIRA, a non-permanent resident alien

convicted of a felony might nonetheless be eligible for suspension of deportation under certain conditions, but that after

the enactment of IIRIRA, a controlled substance conviction

disqualified a non-permanent resident alien from eligibility

for cancellation of removal. Id. at 347. On appeal from the

district court’s denial of habeas relief, Hernandez objected to

the retroactive application of the provision of IIRIRA, which

rendered him ineligible for cancellation of removal, arguing

VALENCIA-ALVAREZ v. GONZALES 19205
that he had relied on existing immigration law when he

pleaded guilty in 1984, and that he had also relied on existing

immigration law following the entry of his conviction and

prior to the enactment of IIRIRA. Id. at 352-53. The Third

Circuit determined that neither of Hernandez’s objections

barred retroactive application. It stated:

Hernandez cannot credibly claim a retroactive effect

from his guilty plea because immediately after he

entered his plea he was ineligible for any kind of

relief and, in fact, would remain ineligible for any

kind of relief for a decade. 

Id. at 353. The Third Circuit concluded: 

Because Hernandez’s application for adjustment of

status amounts to a decision to give up something to

which he had no right in the first place — his ability

to continue living illegally in the United States —

we conclude that Hernandez’s 1999 concession of

his alienage does not cause Congress’ repeal of suspension of deportation as applied to him to be impermissibly retroactive. 

Id. 

[7] In our case, Valencia-Alvarez was not eligible for discretionary relief from deportation at the time he committed

the underlying offense, at the time he was convicted, or when

IIRIRA became effective. Because he was admitted to the

United States in July 1991, he did not have ten or even seven

years of continuous residency in the United States until well

after IIRIRA’s April 1, 1997, effective date. Thus, ValenciaAlvarez had only the hope that if he managed to accrue a sufficient period of continuous residency he would then become

eligible for discretionary relief from deportation or removal.

The loss of an opportunity to become eligible for discretionary relief does not rise to the level of impairing a right pos19206 VALENCIA-ALVAREZ v. GONZALES
sessed by a party.11 Landgraf, 511 U.S. at 280. Accordingly,

the application of the “committed an offense” provision of

§ 1229b(d) to Valencia-Alvarez does not have an impermissible retroactive effect.12

Moreover, our approach is in accord with the Supreme

Court’s opinion in Fernandez-Vargas. Fernandez-Vargas, a

citizen of Mexico, first came to the United States in the

1970s, was deported for immigration violations, reentered in

1982, and remained in the United States thereafter. 126 S. Ct.

at 2427. After marrying a United States citizen, FernandezVargas filed an application to adjust his status to that of lawful permanent resident. Id. The application “tipped off the

11This conclusion is buttressed by the following commentary by the

Supreme Court in Fernandez-Vargas: 

We understand Fernandez-Vargas’s claim as falling within the

second of Justice Story’s categories of retroactivity (new consequences of past acts), not the first category of canceling vested

rights. The forms of relief identified by Fernandez-Vargas as rendered unavailable to him by § 241(a)(5) include cancellation of

removal, see 8 U.S.C. § 1229b(b), adjustment of status, see

§ 1255, and voluntary departure, see § 1229c. These putative

claims to relief are not “vested rights,” a term that describes

something more substantial than inchoate expectations and unrealized opportunities. In contrast to “an immediate fixed right of

present or future enjoyment,” Pearsall v. Great Northern R. Co.,

161 U.S. 646, 673, . . . (1896) (internal quotation marks omitted),

Fernandez-Vargas’s claim to such relief was contingent, and it

was up to him to take some action that would elevate it above the

level of hope. It is not that these forms of relief are discretionary,

cf. St. Cyr, 533 U.S. at 325, . . . ; it is rather that before IIRIRA’s

effective date Fernandez-Vargas never availed himself of them or

took action that enhanced their significance to him in particular,

as St. Cyr did in making his quid pro quo agreement[.] 

126 S. Ct. at 2432 n.10. 

12Our determination is not inconsistent with our recent opinion in

Sinotes-Cruz v. Gonzales, No. 04-70745, ___ F.3d ___ (November 22,

2006), because Sinotes-Cruz was found to have pled guilty prior to

IIRIRA’s effective date and to have been “eligible for discretionary relief

when IIRIRA became effective.” (slip op. at 18735). 

VALENCIA-ALVAREZ v. GONZALES 19207
authorities to his illegal presence here,” and resulted in proceedings that led to the reinstatement of Fernandez-Vargas’s

1981 deportation order, but as a result of the passage of

IIRIRA, without the possibility of adjusting his status to lawful residence. Id. The Supreme Court in affirming the application of IIRIRA to Fernandez-Vargas explained:

St. Cyr’s agreement for a quid pro quo and his plea

were entirely past, and there was no question of

undoing them, but the “transactio[n] or consideratio-

[n]” on which § 241(a)(5) turns is different. While

the law looks back to a past act in its application to

“an alien [who] has reentered . . . illegally,” 8 U.S.C.

§ 1231(a)(5), the provision does not penalize an

alien for the reentry (criminal and civil penalties do

that); it establishes a process to remove him “under

the prior order at any time after the reentry.” Ibid.

Thus, it is the conduct of remaining in the country

after entry that is the predicate action; the statute

applies to stop an indefinitely continuing violation

that the alien himself could end at any time by voluntarily leaving the country. 

Id. at 2432 (footnote omitted). Similarly, in the case at bar,

Valencia-Alvarez has been subject to removal or deportation

ever since his conviction. 

The fact that Valencia-Alvarez was never eligible for discretionary relief from deportation or removal distinguishes his

situation from that presented in Lopez-Castellanos, where we

held that a provision of IIRIRA which expanded the definition

of aggravated felony could not be retroactively applied to a

conviction that was not an aggravated felony when entered.

437 F.3d at 853. We reasoned that ‘[t]o deprive LopezCastellanos of eligibility for discretionary relief would produce an impermissible retroactive effect for aliens who, like

Lopez-Castellanos, were eligible for a discretionary waiver at

the time of the plea.” Id. Here, however, the application of 8

19208 VALENCIA-ALVAREZ v. GONZALES
U.S.C. § 1229b(d)(1)(B) to Valencia-Alvarez does not alter

the character of his conviction or deny him any existing eligibility for discretionary relief. Rather, it denies him only the

possibility of becoming eligible for discretionary relief

through his continued presence in the United States. 

The cases cited by Valencia-Alvarez do not undermine the

need for an existing right before the retroactive application of

§ 1229b(d)(1) is implicated. For example, in Henry v. Ashcroft, 175 F. Supp. 2d 688 (S.D.N.Y. 2001), the alien had

entered the United States in 1984 as a legal permanent resident and was convicted of petit larceny for the first time in

1987. Id. at 691. Removal proceedings were commenced

against Henry in 2000. Id. After the BIA denied her relief,

Henry filed a habeas petition with the district court. Id. The

critical issue before the district court was the retroactive

application of the provision of § 1229b(d)(1)(B) to Henry’s

1987 conviction. The district court granted the writ, holding:

[u]nder the immigration laws in effect prior to

IIRIRA, petitioner did not become statutorily ineligible for INA § 212(c) relief when she entered a guilty

plea to petit larceny on October 5, 1987. After petitioner accrued seven continuous years of lawful residence, she had a reasonable expectation that INA

§ 212(c) relief was available to her. It is an impermissible retroactive application of the clock stopping

provision to strip petitioner of that reasonable expectation. 

Id. at 696. The district court further noted that “[r]egardless

of whether she relied on her eligibility, it is the retroactive

denial of an already accrued eligibility for discretionary relief

that gives the clock stopping provision its impermissible

retroactive effect.” Id. at 696 n.4. 

The same distinction is noted in the case most heavily

relied upon by Valencia-Alvarez, Generi v. Ashcroft, No.

VALENCIA-ALVAREZ v. GONZALES 19209
4:03-CV-15, 2004 WL 771138, 2004 U.S. Dist. LEXIS 6396

(W.D. Mich. Feb. 19, 2004). Generi entered the United States

in 1969, and pleaded guilty to attempted breaking and entering in 1974. Removal proceedings were commenced in 2001.

Generi challenged the application of the “committed an

offense” provision of § 1229b(d)(1)(B) to his 1974 conviction. In granting relief, the district court wrote: 

The issue here is not whether Petitioner considered

the possible immigration consequences of his actions

prior to committing breaking and entering in 1974.

Instead, the Court must consider Petitioner’s settled

expectations as they existed immediately prior to the

enactment to the IIRIRA and determine whether the

passage of the IIRIRA impermissibly upset those

expectations. 

2004 WL 771138, at *9, 2004 U.S. Dist. LEXIS 6396 at *24.

Thus, in Generi and Henry, the aliens were eligible for discretionary relief when IIRIRA became effective, thus distinguishing them from Valencia-Alvarez who has never been

eligible for discretionary relief.13

V

Valencia-Alvarez’s arguments in this petition for review,

although well presented by counsel, are not persuasive. The

Service’s assertion of additional charges following the BIA’s

2002 opinion was not barred by res judicata because that deci13This conclusion also defeats Valencia-Alvarez’s argument that applying § 1229b(d)(1)(B) to his situation denied him due process under the

Fifth Amendment. Although aliens are entitled to due process of law,

Mathews v. Diaz, 426 U.S. 67, 77 (1976), they, like others, must in the

first instance possess a liberty or property interest. Bd. of Regents v. Roth,

408 U.S. 564, 569-71 (1972). Because we determine that ValenciaAlvarez was never eligible for discretionary relief, he has not asserted a

liberty or property interest that could be impacted by the application of

§ 1229b(d)(1)(B) to his situation. 

19210 VALENCIA-ALVAREZ v. GONZALES
sion was not a final judgment rendered on the merits in a separate action. Valencia-Alvarez’s contention that his

continuous residence for purposes of becoming eligible for

discretionary relief should not stop with his 1996 criminal

offense (as provided by 8 U.S.C. § 1229b(d)(1)(B)) fails

because he has not asserted any cognizable right that is compromised by the retroactive application of the statute. Accordingly, the petition for review is DENIED. 

VALENCIA-ALVAREZ v. GONZALES 19211