Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 1 Attorney General Eric H. Holder Jr. is automatically substituted for Michael B. Mukasey as respondent in this case. 07

-46 29

- ag Johnson v.H older 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5

------------- 6 7 August Term 2008 8 9 Argued: October 22, 2008 Decided: April 15, 2009 10 11 Docket No. 07-4629-ag 12 13 --------------------------------------------------X 14 15 NORMA CHRISTINA DRUMMOND DE JOHNSON, 16 17 Petitioner, 18 19 - against - 20 21 ERIC H. HOLDER JR. , 1 22 23 Respondent. 24 25 --------------------------------------------------X 26 27 Before: FEINBERG, POOLER, and WESLEY, Circuit Judges. 28 29 Petition for review by alien of a decision of the Board of 30 I mm i gration Appeals denying her motion to reopen deportation 31 proceeding i n order to seek discretionary relief pursuant to § 32 212(c) of the Immigration and Naturalization Act. Denied. 33 34 MARCUS P. SMITH, Law Student Intern, supervised 35 by Brett Dignam, Jerome N. Frank Legal 36 Services Organization , Yale Law School, New 37 Haven, CT. 38 39 CHARLES CANTER, Office of Immigration Litigation, 40 Civil Division, Uni ted States Department of 41 Justice, Washington, D.C. (Gregory G. 42 Katsas, Acting Assi s tant Attorney General,In 1994, police in Clarksville, Tennessee found 8.5 kg of 2 cocaine and 1.8 kg of marijuana hidden in the panels of a van driven by Johnson. According to police, Johnson admitted she had knowingly driven the drugs from California t o T ennessee for a co-conspirator and that she had made approximately s even previous trips for the same purpose. -2- 1 Civil Divis i on; Blair O’Connor, Senior 2 Litigation Counsel; Cindy S. Ferrier, Senior 3 Litigation Counsel, O f fice of Immigration 4 Litig a tion, Civil Division, Unites States 5 Department of Justice; on the brief), for 6 Respondent. 7 8 9 FEINBERG, Circuit Judge: 10 Petitioner Norma Cristina Drummond de Johnson challenges a 11 decision of the Board of Immigration Appeals (“BIA”) denying 12 her motion to reopen a deportation proceeding against her. We 13 are bound by the decision of an earlier panel of this Court in 14 this very case, and we therefore deny Johnson’s petition. 15 16 I. BACKGROUND 17 Johnson is a native and citizen of Panama. She entered the 18 United States in 1975 as a lawful permanent resident following 19 her marriage to a United States citizen. In 1995, following the 20 death of her husband, Johnson was convicted by a federal jury 21 in the Middle District of Tennessee of possession and 22 conspiracy to possess a controlled substance with the intent to 23 distribute in violation of 21 U.S.C. §§ 841(a)(1), 846. In 2 24 August 1995, she was sentenced to 188 months in prison.-3- 1 In December 1996, the Immigration and Naturalization 2 Service notified Johnson that it would seek to deport her 3 pursuant to Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of 4 the Immigration and Naturalization Act (INA). Deportation 5 proceedings began in January 1997 and in October 1997, the 6 immigration judge (IJ) ordered Johnson deported to Panama. 7 Shortly thereafter, Johnson appealed the IJ’s decision to 8 the Board of Immigration Appeals (BIA). After a procedural 9 remand, the BIA eventually denied Johnson relief. 10 In 2005, with the help of new counsel, Johnson moved to 11 reopen her case before the BIA on the ground that she was 12 eligible for a discretionary waiver of deportation pursuant to 13 § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996) 14 (hereafter “§ 212(c)”). 15 Until 1996, § 212(c) provided discretionary relief from 16 deportation for aliens who 1) were lawful permanent residents, 17 2) had resided in the United States for at least seven years, 18 and 3) had not served five or more years imprisonment on an 19 aggravated felony. See Walcott v. Chertoff, 517 F.3d 149, 151 20 (2d Cir. 2008). An application for § 212(c) relief could either 21 be made affirmatively, before the initiation of deportation 22 proceedings, or defensively, once proceedings were underway. 23 See8 C.F.R. § 212.3(b). The equitable factors determining 24 whether discretionary relief should be granted included-4- 1 duration of residency in the United States, proof of 2 rehabilitation, and the recency of the criminal conviction. See 3 Restrepo v. McElroy , 369 F.3d 627, 634 (2d Cir. 2004). As a 4 result , aliens “would be motivated to wait as long as possible 5 to file a 212(c) application in the hope that [they] could 6 build a better case for relief,” because an application grew 7 stronger with the passage of time. Id . 8 In 1996, Congress enacted two laws restricting the 9 availability of this relief. The first, § 440 of the 10 Antiterrorism and Effective Death Penalty Act (“AEDPA”), 11 partially repealed § 212(c) relief for aliens who had been 12 convicted of an aggravated felony. Pub.L. No. 104-132, 110 13 Stat. 1214, 1277 (Apr. 24, 1996). The second, § 304(b) of the 14 Illegal Immigration Reform and Immigrant Responsibility Act 15 (“IIRIRA”), repealed § 212(c) in its entirety. Pub.L. No. 104- 16 208, 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996). The two 17 repealing statutes also differed in that AEDPA took effect 18 immediately upon enactment, while IIRIRA’s effective date 19 followed its enactment by six months. Johnson’s deportation 20 proceeding began after the AEDPA repeal, but before the IIRIRA 21 repeal took effect, so her case is governed only by AEDPA. 22 The application of AEDPA and IIRIRA to petitioners, 23 including Johnson, whose criminal convictions occurred before 24 the repeals took effect has been the subject of a number of-5- 1 opinions in this Court and in the United States Supreme Court. 2 In INS v. St. Cyr , 533 U.S. 289 (2001), the Supreme Court held 3 that application of the IIRIRA repeal to aliens who pled guilty 4 to deportable offenses prior to the repeal would be 5 impermissibly retroactive. The Court reasoned that the decision 6 to plead guilty and accept a sentence that would leave the 7 alien eligible for § 212(c) relief was likely to have been made 8 in reliance on the continuing availability of § 212(c). Id. at 9 323. Because the IIRIRA repeal upset the expectation underlying 10 the decision to plead guilty, the Court concluded, it “clearly 11 attaches a new disability, in respect to transactions or 12 considerations already past.” Id. at 321 (internal quotation 13 marks omitted). Thus, the repeal had “an obvious and severe 14 retroactive effect” because aliens who pled guilty “almost 15 certainly relied upon [the availability of § 212(c)] in 16 deciding whether to forgo their right to a trial.” Id. at 325. 17 Consequently, the Court found the IIRIRA repeal did not bar the 18 petitioner in St. Cyr from seeking § 212(c) relief, because 19 “[a] statute may not be applied retroactively . . . absent a 20 clear indication from Congress that it intended such a result.” 21 Id . at 316. 22 While St. Cyr settled that § 212(c) relief remained 23 available to aliens who pled guilty, this Court has since 24 repeatedly grappled with the question of when such relief-6- 1 remains available to aliens convicted at trial. We have held 2 that while the decision to go to trial, unlike the decision to 3 plead guilty, does not make application of the repeals 4 retroactive, see Rankine v. Reno , 319 F.3d 93, 100 (2d Cir. 5 2003), an alien who was convicted at trial may nonetheless 6 demonstrate retroactivity if she decided against making an 7 immediate application for § 212(c) relief in reliance on its 8 continuing availability, see Restrepo, 369 F.3d at 637 . 9 Restrepoleft open, however, whether there should be a 10 categorical presumption (as in St. Cyr.) that an alien who was 11 eligible to make an affirmative application prior to the 12 repeals but did not do so relied on the continuing availability 13 of § 212(c), or whether she should be required to make an 14 individualized showing of reliance. See Restrepo , 369 F.3d at 15 640. 16 Such was the state of the law in this circuit when Johnson 17 filed her 2005 motion to reopen her case. The BIA denied the 18 motion in a July 2005 order, concluding that Johnson had not 19 made out a Restrepoclaim because she failed to make an 20 individualized showing of reliance. Johnson then filed her 21 first petition for review in this Court. A panel of this Court, 22 which for purposes of clarity we call the “Johnson I panel,” 23 heard oral argument in August 2006.Johnson petitioned for panel rehearing and rehearing en 3 banc, pre s s i ng essentially the same argument she now makes. These petitions were denied. -7- 1 In December 2006, while Johnson’s petition remained 2 pending, another panel of this Court decided Wilson v. 3 Gonzales , 471 F.3d 111 (2d Cir. 2006). Wilsonheld that in 4 order to succeed in a Restrepoclaim, an immigrant subject to 5 the IIRIRA repeal had to show individualized reliance on the 6 continuing availability of § 212(c). Wilson , 471 F.3d at 117. 7 Four days later, the government filed a letter with the Johnson 8 I

panel pursuant to FRAP 28(j) (the “28(j) letter”). In the 9 letter, the government argued that Wilsonhad decided the 10 question left open by Restrepoand had rejected Johnson’s 11 argument that she need not make an individualized showing of 12 reliance. Johnson filed no response. In February 2007, the 13 Johnson I

panel issued a summary order remanding Johnson’s case 14 to the BIA to determine whether she could make the “requisite 15 showing of individualized reliance.” Johnson v. Gonzales , 218 16 F. App’x 40, 41 (2d Cir. 2007)(“Johnson I”). 3 17 On remand before the BIA, Johnson argued that Wilsondid 18 not control. The BIA, noting the specific instructions of this 19 Court to apply Wilson , in a September 2007 order rejected the 20 argument and again denied Johnson’s motion to reopen. Johnson-8- 1 now petitions this Court for review of the BIA decision, and 2 she does so before still another panel. 3 4 II. Discussion 5 Johnson argues that the Wilsonindividualized reliance 6 standard should not be applied to her case, because while the 7 petitioner in Wilsonwas subject to the IIRIRA repeal, Johnson 8 was subject only to the earlier AEDPA repeal. This is 9 important, she contends, because while IIRIRA gave affected 10 aliens six months notice that a repeal of § 212(c) was coming, 11 AEDPA took effect immediately upon its enactment. She argues 12 that the absence of a notice period in which to make an 13 affirmative application makes it more likely that an AEDPA 14 petitioner was delaying her application in reliance on the 15 continuing availability of § 212(c). Johnson claims that this 16 justifies a categorical presumption of reliance. We do not 17 reach the merits of Johnson’s argument because the law of the 18 case doctrine compels us to follow our earlier ruling in 19 Johnson I

that she must make an individualized showing of 20 reliance. 21 The law of the case doctrine commands that “when a court 22 has ruled on an issue, that decision should generally be 23 adhered to by that court in subsequent stages in the same case” 24 unless “cogent and compelling reasons militate otherwise.”-9- 1 United States v. Quintieri , 306 F.3d 1217, 1225 (2d Cir. 2002) 2 (internal quotation marks omitted). Johnson argues that the law 3 of the case is not implicated because Wilsonwas decided after 4 briefing and oral argument in Johnson I . She contends that her 5 claim that Wilsondoes not govern AEDPA petitioners “has not 6 been addressed” by this Court. Therefore, she argues, the 7 court’s order in Johnson I applying Wilsondoes not constitute 8 the law of the case. 9 This argument mischaracterizes the law of the case 10 doctrine as it is understood in this circuit. Where “an issue 11 was ripe for review at the time of an initial appeal but was 12 nonetheless foregone, it is considered waived and the law of 13 the case doctrine bars . . . an appellate court in a subsequent 14 appeal from reopening such issues.” Quintieri , 306 F.3d at 1229 15 (internal quotation marks omitted). Johnson had ample 16 opportunity to make her current argument to the Johnson I panel 17 after it received the government’s 28(j) letter in December 18 2006. Indeed , that panel waited more than two months after 19 Wilsonwas decided before issuing its summary order. The 20 28(j)letter put Johnson on notice that Wilsonarguably governed 21 her petition. In light of this, the issue of whether Wilson 22 applied to Johnson’s case was certainly “ripe for review” 23 before the earlier panel issued its order. As we have observed, 24 “it would be absurd that a party who has chosen not to argue a-10- 1 point on a first appeal should stand better as regards the law 2 of the case than one who had argued and lost.” Id . (internal 3 quotation marks omitted). 4 We are mindful that the law of the case doctrine “does not 5 rigidly bind a court to its former decisions, but is only 6 addressed to its good sense.” Higgins v. Cal. Prune & Apricot 7 Grower, Inc. , 3 F.2d 896 (2d Cir. 1924)(L. Hand, J.). We may 8 depart from the law of the case for “cogent” or “compelling” 9 reasons including an intervening change in law, availability of 10 new evidence, or “the need to correct a clear error or prevent 11 manifest injustice.” Quintieri , 306 F.3d at 1230. Johnson does 12 not point to either a change in controlling law or new 13 evidence, and we cannot say that manifest injustice will result 14 from adhering to our earlier order. Thus, we may depart from 15 our earlier ruling only if it constitutes “clear error.” 16 We conclude that we cannot justify describing as clearly 17 erroneous this Court’s decision in Johnson I . While it is 18 perhaps true that precedent did not require that panel at that 19 time to apply the individualized reliance standard to Johnson’s 20 case, this alone does not amount to “clear error.” Neither this 21 Court nor the Supreme Court has previously indicated that 22 retroactivity analysis is to be substantially different for 23 AEDPA’s repeal of § 212(c) than for IIRIRA’s. Indeed, during 24 the pendency of Johnson’s latest petition this Court hasThe government a r gues that our decision in Walcott 4 controls this case. Johnson cont e n d s that Walcott is d i s t inguishable because it did not confront the precise issue sh e n o w r aises. It is not necessary for us to decide the precedential significance of Walcott , so we leave that question for another day. -11- 1 explicitly applied the Wilsonindividualized showing of 2 reliance standard to another AEDPA petitioner. See Walcott , 517 3 at 151 . While we do not reach the merits of Johnson’s 4 4 argument, it is not of such a character as to obviously compel 5 a result contrary to the one reached by the Johnson I panel. 6 7 III. Conclusion 8 The law of the case doctrine compels us to follow this 9 Court’s decision in Johnson I and to reject Johnson’s argument 10 that she need not make an individualized showing of reliance. 11 Therefore, Johnson’s petition is DENIED and our order of 12 February 25, 2009 staying Johnson’s removal is VACATED.