Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric H. *

Holder, Jr. is automatically substituted for former Attorney

General Michael B. Mukasey as the respondent herein.

Of the Sixth Circuit, sitting by designation. **

United States Court of Appeals

For the First Circuit

No. 08-1550

BERNARDO NADAL-GINARD,

Petitioner,

v.

ERIC H. HOLDER, JR.,*

Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Torruella, Siler, and Howard, Circuit Judges. **

Ilana Etkin Greenstein, Harvey Kaplan, Jeremiah Friedman,

Maureen O'Sullivan, Jeanette Kain and Kaplan, O'Sullivan &

Friedman, LLP, on brief for petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division,

Mary Jane Candaux, Assistant Director and Michael C. Heyse,

Attorney, Office of Immigration Litigation, United States

Department of Justice, Civil Division,, on brief for respondent.

February 25, 2009
Nadal-Ginard eventually served nine months' incarceration, 1

completed probation and community service, and was discharged from

court supervision in November 2000.

-2-

HOWARD, Circuit Judge. Petitioner Bernardo Nadal-Ginard

seeks review of the Board of Immigration Appeals' ("BIA") decision

denying his motion to terminate removal proceedings, and upholding

the Immigration Judge's decision to pretermit his application for

a waiver of inadmissibility under former § 212(c) of the

Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c).

Discerning no legal or factual error in the BIA's decision, we deny

the petition.

I. BACKGROUND

Nadal-Ginard is a native of Spain who became a lawful

permanent resident of the United States in 1976. In 1995, his

successful medical career in this country was derailed when a jury

convicted him of four counts of larceny of more than $250 for

misappropriating funds from Boston Children's Heart Foundation

("BCHF"), a non-profit corporation organized to serve Boston

Children's Hospital. He was subsequently sentenced to three to

five years in prison for one count and one year each for the

remaining three counts. He was also stripped of his medical 1

license and found liable to BCHF in federal civil proceedings for
Nadal-Ginard does not dispute that his convictions were for crimes 2

involving moral turpitude for which the aggregate sentences to

confinement were five years or more, and which, if his alienage was

established, render him inadmissible to and removable from the

United States. See 8 U.S.C. § 1182(a)(2).

-3-

more than $6.5 million, see Boston Children's Heart Found., Inc. v.

Nadal-Ginard, 73 F.3d 429, 432, 443 (1st Cir. 1996).

Shortly after his conviction, Nadal-Ginard traveled

abroad at least twice to visit his ailing mother: once in June

1996, and again in January 1997. Despite his prior convictions,

which rendered him inadmissible unless he obtained discretionary

relief from the government under statutory provisions in force at

the time, he reentered the United States without incident at the

conclusion of each trip.

In 2004, Nadal-Ginard again traveled abroad and again

attempted to reenter the country, presenting a foreign passport and

his permanent resident alien card ("greencard") to the examining

officer for inspection. This time, however, the Department of

Homeland Security ("DHS") denied him admission on the basis that he

was an arriving alien who had been convicted of crimes involving

moral turpitude punishable by five or more years imprisonment in

aggregate. The DHS subsequently charged him, explicitly as a

native and citizen of Spain, with inadmissibility under the

relevant provisions of the Immigration and Nationality Act ("INA"),

sections 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), and

212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).2
The former § 212(c) granted the Attorney General broad discretion 3

to terminate deportation proceedings against an excludable alien.

For decades, the class of aliens eligible for such relief included

aliens ordered excludable or deportable because of multiple

convictions involving crimes of moral turpitude. Beginning in

1990, however, Congress imposed new limitations on this relief.

-4-

During his removal hearings in front of an Immigration

Judge ("IJ"), Nadal-Ginard raised two arguments relevant to this

petition. First, he argued that the DHS had failed to produce

competent evidence of his alienage, and therefore the IJ lacked

jurisdiction over the removal proceedings. He admitted that he had

presented a foreign passport and a greencard to the immigration

official when he attempted his reentry, but he asserted that it was

the government's burden to establish his alienage, and that the

government's proof was inadequate to do so. The government

resisted both of these propositions, maintaining that the burden

fell to Nadal-Ginard, as a convicted felon, to prove his

citizenship, and relying on Nadal-Ginard's passport as adequate

evidence of alienage. The IJ agreed with the government, finding

that Nadal-Ginard's passport and greencard constituted sufficient

evidence of alienage to establish jurisdiction.

Second, Nadal-Ginard argued to the IJ that he should be

allowed to apply for discretionary relief from removal under the

former INA § 212(c), which at the time of his 1996 readmission to

the country would have permitted him to make such an application,

but which was repealed before his 2004 travel and subsequent

removal hearings. Nadal-Ginard asserted that he had relied on the 3
Among them, it passed the Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA") in April 1996, Pub. L. No. 104-132, 110 Stat.

1214 (1996), effective April 24, 1996, and in so doing identified

certain offenses for which convictions would preclude discretionary

relief from deportation proceedings (but not exclusion

proceedings), including, inter alia, the offenses of which NadalGinard was convicted. Later that year, on September 30, Congress

repealed § 212(c) and replaced it with § 304(b) of the Illegal

Immigrant Reform and Immigrant Responsibility Act of 1996

("IIRIRA"), which created a new form of discretionary relief called

cancellation of removal. 8 U.S.C. § 1229b. This new relief gave

the Attorney General authority to cancel removal for a narrow class

of inadmissible or deportable aliens; the narrow class does not

include aliens convicted of multiple crimes involving moral

turpitude. INS v. St. Cyr, 533 U.S. 289, 294-97 & n.7 (2001).

Nadal-Ginard's overseas travel in June 1996 fell in between the

effective dates of AEDPA and IIRIRA, and therefore, at that time,

Nadal-Ginard would have been eligible for discretionary relief from

exclusion proceedings but not from removal proceedings.

-5-

continued availability of § 212(c) relief when he decided to pursue

a jury trial, and therefore he should be excused from the

retroactive application of its repeal. Finding no evidence in the

record of any such reliance, the IJ denied the request. The IJ

eventually found Nadal-Ginard removable as charged and pretermitted

his applications for cancellation of removal and a waiver of

inadmissibility.

On appeal, the BIA affirmed in a separate written

opinion. In response to Nadal-Ginard's renewed argument that his

alienage had not been established, the BIA explicitly found that

Nadal-Ginard was a lawful permanent resident who, because of his

convictions, was correctly categorized as an arriving alien. It

further held that, because he was an arriving alien, Nadal-Ginard

bore the burden of proving his admissibility, and it rejected
-6-

Nadal-Ginard's assertion that the government bore the burden of

establishing his alienage. Finally, the BIA concluded that NadalGinard had failed to establish that he was entitled to be admitted

to the United States because he presented no "reliable evidence" of

U.S. citizenship and had not "shown that his Spanish passport

confers anything less than full nationality and citizenship of

Spain."

The BIA further held that Nadal-Ginard had not

established his eligibility to apply for § 212(c) relief. Citing

INS v. St. Cyr, 533 U.S. 289 (2001), and Dias v. INS, 311 F.3d 456

(1st Cir. 2002), the BIA reasoned that because his convictions were

obtained after trial rather than by plea agreements, Nadal-Ginard

was subject to the retroactive application of § 212(c)'s repeal.

The BIA additionally rejected Nadal-Ginard's argument that he

should be allowed to apply for § 212(c) relief nunc pro tunc to the

date of his first post-conviction admission into the United States,

an admission which he characterized as contrary to law and having

the effect of denying him the opportunity to apply for

discretionary relief. The BIA held that it "lack[ed] jurisdiction"

to interfere with what it characterized as the DHS's "prosecutorial

discretion to decide if and when to commence removal proceedings

against aliens," but it also considered the merits of NadalGinard's argument and found that Nadal-Ginard had failed to
-7-

"demonstrate any basis for seeking nunc pro tunc relief under

section 212(c)." This petition for review followed. 

II. LEGAL STANDARDS

We have jurisdiction over the petition pursuant to INA §

242(a)(1)(A), 8 U.S.C. § 1252(a)(1), which provides for review of

final orders of removal, and INA § 242(a)(2)(D), 8 U.S.C. §

1252(a)(2)(D), which provides for circuit courts' review of legal

and constitutional questions even if otherwise barred by the

jurisdiction-stripping provisions of INA § 242(a)(2)(B), (C).

When the BIA issues its own opinion affirming an

immigration judge's decision, we focus on the Board's decision.

Pulisir v. Mukasey, 524 F.3d 302, 307-08 (1st Cir. 2008) (citing

Stroni v. Gonzales, 454 F.3d 82, 86 (1st Cir. 2006)). We review

constitutional questions and questions of law de novo. Mekhoukh v.

Ashcroft, 358 F.3d 118, 129 (1st Cir. 2004). We typically give

deference to the DHS's construction of the INA, which the agency

administers. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999);

Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004); Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984). However, when the Court reviews the retroactive

application of a statute, it does not afford the agency's

interpretation any deference. St. Cyr, 533 U.S. at 320 n.45.
-8-

III. DISCUSSION

A. Nadal-Ginard's Alienage and the BIA's Jurisdiction

Nadal-Ginard's first argument to us is that the

government failed to establish his alienage during the

administrative proceedings, and therefore the BIA lacked

jurisdiction. His attack is two-fold: he argues that the BIA

erred as a matter of law in holding that the DHS did not bear the

burden of establishing that he is an alien, and that the evidence

in the record showing alienage is insufficient to establish his

present alienage. We disagree.

1. The Burden of Establishing Alienage

As to the burden of establishing alienage, Nadal-Ginard

concedes that, if his alienage had been established, he would have

borne the burden of proving his admissibility to the United States.

He argues, however, that the BIA erred by expecting him to shoulder

that burden without first requiring reliable evidence of alienage

from the government. 

On the contrary, the BIA properly treated Nadal-Ginard as

an arriving alien and made no error of law in exerting jurisdiction

over him. All persons attempting to enter the United States must

apply in person to an immigration officer at a port-of-entry. 8

C.F.R. § 1235.1(a). "A person claiming U.S. citizenship must

establish that fact to the examining officer's satisfaction," and

if such person "fails to satisfy the examining immigration officer
-9-

that he or she is a U.S. citizen, he or she shall thereafter be

inspected as an alien." 8 C.F.R. § 1235.1(b). And, as the BIA

properly noted, an alien who is an applicant for admission has the

burden of establishing that he "is clearly and beyond doubt

entitled to be admitted and is not inadmissible under section [212

of the INA]." 8 U.S.C. § 1229a(c)(2)(A); see also 8 C.F.R. §

1240.8(b) (an arriving alien "must prove that he or she is clearly

and beyond a doubt entitled to be admitted to the United States and

is not inadmissible as charged").

Moreover, even though an alien lawfully admitted for

permanent residence is not normally regarded as seeking admission

into the United States for purposes of the immigration laws, 8

U.S.C. § 1101(a)(13)(C), an exception to that rule exists for an

alien who, like Nadal-Ginard, has committed multiple crimes

involving moral turpitude (other than purely political offenses)

for which the aggregate sentences to confinement were five years or

more. Under such circumstances, that alien must be regarded as

seeking admission and deemed inadmissible. 8 U.S.C. §

1101(a)(13)(C)(v) ("An alien lawfully admitted for permanent

residence in the United States shall not be regarded as seeking an

admission into the United States for purposes of the immigration

laws unless the alien . . . has committed an offense identified in

section 1182(a)(2) of this title . . . ."); 8 U.S.C. §

1182(a)(2)(A)-(B) (listing categories of aliens who are
-10-

inadmissible, including those who have been convicted of a crime

involving moral turpitude (other than a purely political offense)

after the age of eighteen where the maximum possible penalty

exceeded one year's imprisonment, and those who have been convicted

of two or more offenses (other than purely political offenses),

regardless of whether the offenses involved moral turpitude, for

which the aggregate sentences to confinement were five years or

more); see also De Vega v. Gonzales, 503 F.3d 45, 47-48 (1st Cir.

2007) (denying a lawful permanent resident's petition for review

where the petitioner had been charged as an arriving alien and

found inadmissible based on a prior conviction for a crime

involving moral turpitude).

It is undisputed that when Nadal-Ginard applied for

admission to the United States, he presented a foreign passport and

his greencard, and that he did not otherwise claim United States

citizenship. That this application did not satisfy the examining

officer of Nadal-Ginard's U.S. citizenship -- if that is what the

documents were intended to do -- is unsurprising: nothing about a

foreign passport and a greencard could alert an examining officer

to a person's U.S. citizenship, or even to a claim of citizenship.

Moreover, and as discussed in further detail below, the passport

and greencard were introduced as evidence of alienage at the

removal hearing and were never rebutted with reliable contradicting

evidence. These documents, which both the BIA and the IJ relied
-11-

upon as evidence of alienage, were undoubtedly enough to make out

the adequate prima facie case of alienage referred to in our case

law. See, e.g., Navia-Duran v. INS, 568 F.2d 803, 811 (1977); Sint

v. INS, 500 F.2d 120, 123-24 (1st Cir. 1974) (Campbell, J.,

concurring). Accordingly, the BIA made no error of law when it

concluded that Nadal-Ginard was a lawful permanent resident who,

because of his prior convictions, was properly treated as an

arriving alien bearing the burden of proving admissibility. 

2. The Evidence of Alienage

Nadal-Ginard's alternative argument attacks the documents

the BIA relied upon in reaching its alienage conclusion,

specifically, his passport, greencard, and customs declaration. In

particular, he argues that the photocopies of his passport and his

customs declaration card were not translated into English, and that

the photocopies of his passport and greencard are "largely

illegible."

These arguments are unpersuasive. The greencard,

combined with Nadal-Ginard's prior convictions, provided compelling

evidence supporting the DHS's decision to inspect him as an alien

for purposes of admissibility. This is especially so given that

the record contains no other claim of citizenship. While it is

true that the BIA did not explicitly rely on the greencard as

evidence of alienage in its decision, "[t]he law is pellucid that

'each piece of evidence need not be discussed in a decision,'"
-12-

Pulisir, 524 F.3d at 310 (quoting Morales v. INS, 208 F.3d 323, 328

(1st Cir. 2000)), and the BIA's opinion is clear in recognizing his

status as a lawful permanent resident, evidence of which was his

greencard.

Additionally, the passport, which Nadal-Ginard

acknowledges to be foreign and which was explicitly mentioned in

the BIA's decision, provided further evidence of Nadal-Ginard's

alienage. It is true that foreign language documents are normally

required to be accompanied by an English translation, 8 C.F.R. §

1003.33, and that illegible documents are often useless. In this

case, however, the fact that the relevant evidence was not

translated or entirely legible did not preclude it from the IJ's or

BIA's consideration under the circumstances. The evidentiary

significance of each document was facially apparent to the

adjudicators, and there was no question as to the authenticity of

the documents: the greencard bore Nadal-Ginard's name and

photograph, and there was no direct evidence offered to show that

his status had changed; similarly, the passport bore Nadal-Ginard's

name and photograph, and was clearly and admittedly not issued by

the United States. See United States v. Diaz, 519 F.3d 56, 64 (1st

Cir. 2008) (no plain error in a criminal case where untranslated

foreign language documents, including a passport, were admitted

under the Federal Rules of Evidence because the "evidentiary

significance was facially apparent"); Toure v. Ashcroft, 400 F.3d
We also find unpersuasive Nadal-Ginard's argument, relying on 4

Sint, 500 F.2d 120, that the BIA erred in accepting the

government's evidence as proof of current citizenship. In Sint,

the record did not contain a foreign passport or a greencard. Id.

at 122-23. Additionally, we emphasize that at no point has NadalGinard explicitly claimed, or offered any proof, that he has been

naturalized. 

-13-

44, 48 (1st Cir. 2005) ("[T]he Federal Rules of Evidence do not

apply in INS proceedings," rather, "'the less rigid constraints of

due process impose outer limits based on considerations of fairness

and reliability.'") (quoting Yongo v. INS, 355 F.3d 27, 30 (1st

Cir. 2004)). The BIA therefore did not err in considering the

government's evidence of alienage.4

As to the sufficiency of that evidence, although the

government has not explicitly argued the point, we are doubtful of

our jurisdiction to consider the evidence of alienage in this case,

as Nadal-Ginard's prior convictions appear to bring him within the

ambit of the jurisdiction-stripping provisions of 8 U.S.C. §

1252(a)(2)(C). In any event, we note that at no point did NadalGinard offer the IJ or BIA any evidence capable of casting a

reasonable doubt upon the examining officer's decision to inspect

him as an alien, or upon the government's evidence. Moreover,

evidence Nadal-Ginard adduced during his administrative hearings

tended to support the examining officer's actions and the

government's evidence of alienage. Specifically, his marriage

license lists his place of birth as Arta, Spain, and we have held

that an individual born abroad is presumed to be an alien and bears
Nadal-Ginard's reliance on a letter he proffered from the Counsel 5

for Judicial Affairs at the Embassy of Spain is misplaced. That

said, the letter is simply too speculative and inconclusive to

support Nadal-Ginard's argument. It states that Nadal-Ginard's

"daughters maintain that the process of acquiring [United States]

citizenship did not get to be finalized," but then relies on "the

concreteness of . . . information provided by our contact in [the

Spanish Immigration Service]" to conclude that the daughters'

report is "quite doubtful." We agree with the BIA's determination

that this letter does not provide "reliable evidence" as to NadalGinard's U.S. citizenship. 

-14-

the burden of rebutting that presumption by a fair preponderance of

the evidence. Leal Santos v. Mukasey, 516 F.3d 1, 4 (1st Cir.

2008). The record offers no support for the conclusion that NadalGinard carried that burden. We therefore have no basis to upset 5

the BIA's factual finding that Nadal-Ginard was an alien for

purposes of his removal hearings. See 8 U.S.C. § 1252(b)(4)(B)

(administrative findings of fact are conclusive unless "any

reasonable adjudicator would be compelled to conclude to the

contrary").

B. Nadal-Ginard's Eligibility for Relief under § 212(c)

Nadal-Ginard's second argument is that he should have

been permitted to apply for § 212(c) relief nunc pro tunc to June

1996, the date of his first post-conviction admission to the United

States. Nadal-Ginard contends that this admission was contrary to

law because his prior convictions should have rendered him

excludable. He argues that, had he been denied admission at that

time, he would have applied for § 212(c) relief; instead, because

he was not denied admission until after § 212(c) was repealed, he
-15-

has been wrongly deprived of his opportunity to seek that relief.

Alternatively, Nadal-Ginard argues that the abolition of § 212(c)

had an impermissible retroactive effect under St. Cyr, 533 U.S.

289, and that we should therefore allow him to apply for that

relief. Neither of these arguments is persuasive.

1. Section 212(c) Relief Nunc Pro Tunc

Nadal-Ginard's principal authority for his nunc pro tunc

argument is Matter of L-, 1 I. & N. Dec. 1 (A.G. 1940). In Matter

of L-, a petitioner who had previously been convicted of larceny

left the country and was erroneously admitted upon his return when

the examining officer failed to ask about, and the petitioner

failed to mention, the prior conviction, which should have rendered

him excludable from the country. Apparently realizing its error,

the government issued an arrest warrant against the petitioner and

commenced deportation proceedings four months later. Under the

laws in place at the time, had the petitioner been excluded, he

could have applied for discretionary relief; because he had been

admitted, he could not. During the deportation proceedings, the

petitioner therefore requested the opportunity to apply for

discretionary relief from exclusion nunc pro tunc to the time of

his erroneous admission, arguing that the government's mistake in

not excluding him had deprived him of the opportunity to avail

himself of the discretionary relief. The petitioner was eventually
-16-

granted the opportunity to apply out of time, and he ultimately

received the discretionary relief he desired.

Despite the obvious factual similarities between the

instant case and Matter of L-, the cases are distinguishable in two

material and ultimately dispositive ways. First, the Matter of Ldecision explicitly relied on the relatively inconsequential nature

of the petitioner's prior offense, describing it as "in no way

aggravated." Id. at 2. The decision noted that the prior offense

involved a single incident of stealing a watch approximately

sixteen years before the deportation proceedings began, and that

the petitioner was not imprisoned for his actions. Id. at 1-2. In

contrast, Nadal-Ginard's prior convictions resulted in a multi-year

prison sentence, the loss of his professional license, and a civil

judgment against him totaling more than six million dollars.

Second, the deportation proceedings in Matter of L- were initiated

against the petitioner while the petitioner was in the United

States, and they appeared to represent the government's attempt to

correct its error in admitting him earlier the same year. Except

to the extent that he failed to alert the examining officer to his

prior conviction when he reentered the country, the petitioner in

Matter of L- at no point tempted fate by taking an action that he

knew or should have known would render him excludable or deportable

without the statutory right to apply for discretionary relief.

Nadal-Ginard, on the other hand, chose to leave the country and
-17-

return in 2004 despite the fact that, at that time, doing so would

clearly render him inadmissible without a statutory right to §

212(c) relief. In this way, Nadal-Ginard's decision to leave the

country in 2004 constituted a more brazen gamble than the

relatively minor oversights that contributed to the Matter of Lpetitioner's erroneous readmission. These two differences between

the cases -- the nature and extent of the petitioners' respective

prior wrongdoing, and the circumstances leading to the petitioners'

respective removal and deportation proceedings -- put Nadal-Ginard

in a materially different position from that of the petitioner in

Matter of L-. 

Granting a request to apply for § 212(c) nunc pro tunc

has been said to be a matter of equity. See Fernandes Pereira v.

Gonzales, 417 F.3d 38, 43 & n.4 (1st Cir. 2005) (describing a

request to apply for § 212(c) relief nunc pro tunc as an "equitable

argument"); see also Fernandes Pereira v. Gonzales, 436 F.3d 11, 11

(1st Cir. 2006) (Lipez, J., dissenting) (describing nunc pro tunc

relief as "equitable relief"). Based on the record and the

petitioner's cited authorities, the equities in this case are not

compelling enough to grant Nadal-Ginard's request to apply for §

212(c) relief out of time. We therefore will not upset the BIA's

finding that Nadal-Ginard did not demonstrate a proper basis for

seeking the unusual remedy of a nunc pro tunc application for
We therefore need not reach the BIA's other rationale for its 6

decision, namely, that it lacked jurisdiction over the DHS's

exercise of prosecutorial discretion. If this finding constituted

error -- and we take no position on that issue -- there was no

prejudice. See 5 U.S.C. § 706 (when reviewing agency action, "due

account shall be taken of the rule of prejudicial error"); see

also, e.g., Nat'l Ass'n of Home Builders v. Defenders of Wildlife,

127 S. Ct. 2518, 2530, ___ U.S. ___ (2007); PDK Labs., Inc. v.

United States Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir.

2004) ("In administrative law, as in federal civil and criminal

litigation, there is a harmless error rule . . . ."); Kadia v.

Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) ("[T]he doctrine of

harmless error is applicable to judicial review of immigration

decisions . . . .").

-18-

relief under former § 212(c). See Fernandes Pereira v. Gonzales,

417 F.3d at 47.6

2. Retroactive Application of § 212(c)'s Repeal

Nadal-Ginard's argument that the repeal of § 212(c)

relief had an impermissible retroactive effect is similarly

unavailing, for the reason offered by the BIA: Nadal-Ginard was

convicted following a jury trial, and therefore does not fall

within the ambit of St. Cyr, which specifically focused on the

reliance interests of those aliens who entered plea agreements when

§ 212(c) relief was available to them. 

This issue is controlled by Dias v. INS, 311 F.3d 456

(1st Cir. 2002). In Dias, we considered whether the 1996

restriction and repeal of § 212(c) had an impermissible retroactive

effect on an alien who had been convicted after a trial in 1995.

In our discussion of St. Cyr, we noted that "the potential for

unfairness to one who pled guilty in reliance on immigration law as
We note, as did the BIA, that this result is consistent with the 7

regulations implementing § 212(c), which explicitly allow special

motions to seek § 212(c) relief by aliens whose convictions were

"obtained by plea agreements reached prior to a verdict at trial

prior to April 1, 1997," and which include the explicit limitation,

"This section is not applicable with respect to any conviction

entered after trial." 8 C.F.R. § 1003.44(a).

Even if there may be situations where a petitioner's actions after 8

trial demonstrate reliance on the continued availability of §

212(c) relief, see e.g., Carranza de Salinas v. Gonzales, 477 F.3d

200 (5th Cir. 2007); Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006),

the record contains no evidence of such reliance. At a hearing

held July 27, 2005, the IJ invited Nadal-Ginard to submit an

affidavit in support of his reliance argument, but according to the

record, no such affidavit was filed in the ten months between that

hearing and the IJ's May 2006 decision.

-19-

it existed at the time of the plea would be significant if the

[restrictions on § 212(c) relief] were applied retroactively," but

we contrasted that situation with alien criminal defendants who

chose to go to trial prior to the change in immigration law,

finding that such defendants "were not relying on immigration law

as it existed at the time in making that decision." Dias, 311 F.3d

at 458. We therefore rejected the alien's appeal, holding that

"application of the new statutory limitations on discretionary

relief does not have an impermissible retroactive effect on those

aliens who would have been eligible for discretionary relief when

they were convicted of a felony after trial." Id. 7

Just like the appellant in Dias, Nadal-Ginard proceeded

to trial, and he has made no showing that the continued

availability of § 212(c) factored into that decision.8
-20-

Finally, we do not reach Nadal-Ginard's argument, relying

on Hem, 458 F.3d 1185, that we should adopt an "objective potential

reliance standard" for purposes of our retroactivity analysis. As

explained above, under Dias, the repeal of § 212(c) applies to

Nadal-Ginard, and we are bound by the law of the circuit doctrine.

Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 65 (1st Cir. 2008)

(describing the doctrine as "'hold[ing] prior panel decision

inviolate absent either the occurrence of a controlling intervening

event (e.g., a Supreme Court opinion on the point; a ruling of the

circuit, sitting en banc; or a statutory overruling) or, in

extremely rare circumstances, where non-controlling but persuasive

case law suggests such a course'") (quoting United States v.

Chhien, 266 F.3d 1, 11 (1st Cir. 2001)). But even were Dias not

dispositive of this issue, Nadal-Ginard's argument would still

fail, as the record contains no reliable indication that he based

or might have based any decision made prior to the repeal of §

212(c) on the continued availability of discretionary relief, nor

does it contain any reliable indication that any such decision

would have been reasonable. See supra note 8; cf. Hem, 458 F.3d at

1199, 1200-01 (petitioner decided to forgo appeal of his aggravated

assault conviction because a new trial could have resulted in a

sentence making him ineligible for § 212(c) relief); Ponnapula v.

Ashcroft, 373 F.3d 480, 484, 497 (3d Cir. 2004) (petitioner's

decision to reject plea and proceed to trial deemed reasonable
-21-

where the decision was premised on his counsel's advice regarding

petitioner's continued eligibility for discretionary relief, and

where the uncontradicted facts demonstrated that petitioner's

"minor and essentially unknowing" conduct was unlikely to render

him ineligible for § 212(c) relief).

Nadal-Ginard's petition for review is therefore DENIED.