United States Court of Appeals

Fifth Circuit



## FILED

February 17, 2005

Charles R. Fulbruge III

Clerk In the United States Court of Appeals

For the Fifth Circuit

_________________________

No. 04-20164

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CARLOS ALVAREZ-HERNANDEZ,

Petitioner - Appellant,

versus

HIPOLITO M. ACOSTA, District Director;

ALBERTO GONZALES, U.S. Attorney General,

Respondents - Appellees.

_________________________

Appeal from the United States District Court

For the Southern District of Texas

_________________________

Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case involves an alien who pleaded guilty to a felony

charge before Congress repealed the waiver of deportation made

available by § 212(c) of the Immigration and Nationality Act, but

whose judgment of conviction was entered afterward. Following the

Board of Immigration Appeals’ rejection of the alien’s § 212(c)

application, the district court entertained his habeas petit ion.

The court rejected the BIA’s conclusion that access to § 212(c) was

foreclosed by entry of the judgment of conviction after § 212(c)’s

repeal, but accepted the Government’s argument that the alien was

ineligible for relief because he had failed to accrue the requisite1 8 U.S.C. § 1182(c) (repealed 1996).

2 Pub. L. No. 104-208, Div. C, Title III, § 304(b), 110 Stat. 3009, 3597

(1996).

2 seven yea rs unrelinquished domicile in the United States by the

date of his guilty plea. We reverse and remand.

I

Carlos Alvarez-Hernandez entered the United States illegally

at the age of fifteen. He obtained temporary lawful residence

through an amnesty program in 1988, and became a lawful permanent

resident in 1991. He was arrested and indicted for aggravated

delivery of a controlled substance, and pleaded guilty to this

charge on November 7, 1994. That same day, the court issued an

order accepting the plea and entered it on the minutes. The case

was reset throughout 1995 and 1996. Final judgment of conviction

imposing a sentence of ten years’ probation was entered on March 7,

1997.

In August 1998, the INS commenced removal proceedings against

Alvarez based on his aggravated felony controlled substance

convictio n. Alvarez admitted the truth of the INS’s factual

allegations, and sought relief under, inter alia , former § 212(c)

of the Immigration and Nationality Act. 1 The Immigration Judge

ordered Alvarez removed to El Sal vador, and denied relief under

§ 212(c) on grounds that it had been repealed by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”). 2 Alvarez appealed the IJ’s ruling to the Board of3 533 U.S. 289 (2001).

3

Immigration Appeals.

While Alvarez’s appeal was pending before the BIA, the Supreme

Court decided INS v. St. Cyr

, 3 in which it held that the repeal of

§ 212(c) could not be applied retroactively to deny relief to

aliens whose convictions were obtained by plea agreements and who

would have been eligible for relief at th e time of their pleas.

Alva rez argued to the BIA that S t. Cyr applied to him because he

pleaded guilty to the drug charge in 1994, roughly two years before

§ 212(c) was repealed. The BIA rejected this argument, noting that

Alvar ez had not been formally convicted until 1997, and affirmed

the decision of the IJ.

Alvarez filed a habeas corpus petition under 28 U.S.C. § 2241

arguing that St. Cyr entitled him to apply for relief under

§ 212(c). The Government moved for summary judgment, contending

that St. Cyr did not apply because j udgment was not entered on

Alvarez’s conviction until 1997. In addition, the Government

argued that, even if the date of Alvarez’s guilty plea controlled,

he was ineligible for relief under § 212(c) because he lacked seven

years of continuous lawful domicile on the date of his plea. The

district court granted the Government’s motion for summary

judgment. The court found that the date on which a convicted

alien’s guilty plea is accepted determines whether the application

of the IIRIRA bar to the alien’s § 212(c) claim for relief produces4 Madriz-Alvarado v. Ashcroft , 383 F.3d 321, 327 (5th Cir. 2004).

5 Ghassan v. INS , 972 F.2d 631, 633-34 (5th Cir. 1992).

4 impermissible retroactive effect under St. Cyr

. However, the court

also found that an alien must have been eligible for § 212(c)

relief at the time of his pl ea in order to circumvent the IIRIRA

bar. Because Alvarez lacked the requisite seven years of lawful

domicile required for § 212(c) relief at the time h e entered his

plea, the court denied his petition. Alvarez filed a timely notice

of appeal.

II

We review the district court’s dismissal of a habeas petition

on summary judgment de novo

. 4 On appeal, Alvarez argues that the

district court erred in finding that an alien must have accrued at

least seven years of lawful domicile within the United States at

the time of his plea in order to be eligible for § 212(c) relief

under St. Cyr. T he Government, on the other hand, con tends that

the district court incorrectly found that St. Cyr looks to the date

of an alien’s guilty plea, and not the date of the judgment of

conviction, to determine whether impermissible retroactive effect

is present.

Prior to its repeal, § 212(c) allowed the Attorney General to

“waive deportation of eligible permanent resident aliens, including

those [who had been] convicted of controlled substances offenses.” 5

In order to qualify for relief under § 212(c), an alien needed to6 Ashby v. INS , 961 F.2d 555, 557 (5th Cir. 1992).

7 See Rivera v. INS

, 810 F.2d 540, 541 (5th Cir. 1987) (citing In re Lok

, 18 I&N Dec. 101, 105 (BIA 1981)).

8 See Pritchard-Ciriza v. INS

, 978 F.2 d 219, 223-25, 224 n.9 (5th Cir.

1992) (finding that an alien need only be “lawfully” present for seven years in

o rder to apply for a § 212(c) waiver, and observing that “eligibility for

§ 212(c) relief is determined as of the date the order to show cause is issued”).

5 show that (1) he was admitted for permanent residence in the United

States, and (2) he has “maintained a lawful unrelinquished domicile

in the United States for seven consecutive years.” 6 With respect

to the first requirement, our court has found that an alien’s

status as a lawful permanent resident terminates upon the

administrative finalization of the alien’s deportation order. 7

With respect to the second requirement, our court has found that an

alien’s period of lawful domicile begins running upon the alien’s

acquisition of some form of lawful re sident status, either

temporary or permanent, and terminates when the INS commences

deportation proceedings against the alien. 8

In 1996, Congress repealed the § 212(c) waiver through passage

of the IIRIRA. The INS adopted the position that this repeal

applied to all removal proceedings initiated after April 1, 1997,

the effective date of the IIRIRA, regardless of whether the

affected alien pleaded guilty to the charge forming the basis of

removal prior to the repeal. The Supreme Court repudiated this

position in St. Cyr

. Applying the retroactivity analysis set forth9 511 U.S. 244 (1994).

10 St. Cyr , 533 U.S. at 316-20.

11 Id. at 320.

12 Id. at 321 (citations and internal quotation marks omitted).

13 Id. (citations and internal quotation marks omitted).

6 in Landgraf v. USI Film Products

, 9 the Court analyzed the text of

the IIRIRA and concluded that it did not contain an unambiguous

direction commanding retroactive effect with respect to its repeal

of § 212(c). 10

The Cou rt then turned to the question of whether “depriving

removable aliens of consideration for § 212(c) relief produces an

imper missible retroactive effect for aliens who . . . were

convicted pursuant to a plea agreement at a time when their plea

would not have rendered them ineligible for § 212(c) relief.” 11 The

Court observed that the inquiry into whether a statute produces

impermissible retroactive effect requires a determination about

whether the s tatute attaches new legal obligations, duties, or

d isabilities to events or transactions “completed before its

enactment.” 12 This determination, the Court noted, should be

“informed and guided by familiar considerations of fair notice,

reasonable reliance, and settled expectations.” 13

The Court found that the IIRIRA’s elimination of § 212(c)

relief attached a new disability to those aliens who had reached

plea agreements with the expectation that § 212(c) would be14 Id. (“IIRIRA’s elimination of an y possibility of § 212(c) relief for

people who entered into plea agreements with the expectation that they would be

eligible for such relief clearly attaches a new disability, in respect to

transactions or considerations already past.” (citations and internal quotation

marks omitted)).

15 Id. at 323.

16 Id. at 326 (emphasis added).

7 available to them. 14 The Court observed that it would be contrary

to “familiar considerations of fair notic e, reasonable reliance,

and settled expectations” to deprive such aliens of any possibility

of relief under § 212(c) when they had relied upon “settled

practice, the advice of counsel, and perhaps even assur ances in

open court that the entry of the plea would not foreclose § 212(c)

relief.” 15 Based in part on these observations, the Court held that

“§ 212(c) relief remains available for aliens, like respon dent,

whose convictio ns were obtained through plea agreements and who,

notwithstanding th ose convictions, would have been eligible for

§ 212(c) relief a t the time of their plea under the law then in

effect .” 16

A

We first address Alvare z’s argument that the district court

erred in finding that § 212 (c) relief was not available to him

under St. Cyr because he lacked the requisite seven years

continuous domicile within the United States at the time of his

plea.

The district court’s findin g was based solely upon its17 Id. (emphasis added).

18 See Pritchard-Ciriza , 978 F.2d at 224 n.9.

8 conclusion t hat the language of S t. Cyr extends eligibility for

§ 212(c) relief only to those aliens who would have been

imm ediately eligible for it “at the time of their plea.” The

dis trict court reached this conclusion by seizing upon the words

“at the time of their plea” to the exclusion of the surrounding

text and in contravention of the policy motivating the Supreme

Court’s decision in St. Cyr

. The Court in S t. Cyr explicitly chose

to extend § 212(c) eligibility to aliens who would have been

eligible for such relief “at the time of their plea under the law

t hen in effect .” 17 Under the law of our circuit in effect at the

time of Alvarez’s guilty plea, he was not required to have

accumulated seven years of unrelinquished domicile at the time of

his plea in order to qualify for relief under § 212(c). Rather, he

was permitted to continue accruing additional time toward his

period of domicile up to the point at which removal proceedings

were initiated against him. 18

At the time of his guilty plea, Alvarez had accrued roughly

six years of continuous lawful domicile within the United States.

Given the fact that removal proceedings may not be initiated until

after judgment is entered, Alvarez likely anticipated that he would

be able to accrue an additional period of domic ile before

proceedin gs began. Conditioning eligibility for § 212(c) relief19 Our court has recognized the importance placed by the Supreme Court upon

protecting the reliance interests of aliens who, prior to the IIRIRA, had waived

their trial rights and entered guilty pleas in exchange for an opportunity to

apply for § 212(c) relief. S ee Ojeda-Terrazas v. Ashcroft , 290 F.3d 292, 301

(5th Cir. 2002) (“ The [ St. Cyr ] Court found that aliens, like St. Cyr, who

entered plea agreements with the government before IIRIRA becam e effective

‘almost certainly’ relied upon the likelihood of receiving a discretionary waiver

of deportation from the Attorney General – a possibility that the new IIRIRA

provision eliminated

– when deciding to forgo their right to a trial.”). Other

circuits have likewise noted the importance that protecting reliance interests

played in the Court’s St. Cyr decision. S ee Ponnapula v. Ashcroft

, 373 F.3d 480,

492 (3d. Cir. 2004) (“ St. Cyr is principall y concerned with the reasonable

reliance inter e sts of aliens who enter into plea agreements as a class.”);

Rankine v. Reno

, 319 F.3d 93, 102 (2d. Cir. 2003) (“[T]he issue of reliance has

played a central role in the Supreme Court’s and the circuit court’s reasoning

with respect to the retroactivity of the IIRIRA and AEDPA.”); Chambers v. Reno

, 307 F.3d 284, 289 (4th Cir. 2002) (“In reaching [its] conclusion, the Court

focused on an alien’s reasonable reliance on the possibility of discretionary

relief under INA § 212(c) as one of the most important factors prompting him to

forego trial and enter a plea agreement.”); Domond v. INS

, 244 F.3d 81, 86 (2d.

Cir. 2001) (finding that expectation interests of alien in S t. Cyr w ere

“especially strong” when his guilty plea was entered before the effective date

of the AEDPA, “because an alien is likely to consider the immigration

consequences when deciding whether and how to plead”).

9 upon Alvarez’s accrual of seven years of lawful domicile at the

time of his plea would serve to thwart any reasonable expectation

he may have formed, in light of existing law, that he would be

allowed the opportunity to accrue an additional period of domicile

following the entry of his plea and before removal proceedings were

initiated. 19 Thus, we find that S t. Cyr does not require an alien

to have accrued seven years of lawful domicile at the time of his

or her plea in order to qualify for relief under § 212(c).

This conclusion find s support in a recently promulgated

regulation providing for a special motion allowing aliens who

pleaded guilty or nolo contendere to certain crimes before April 1,

1997, to seek § 212(c) relief. The regulation provides that an

alien seeking relief must establish that he or she:20 8 C.F.R. § 1003.44(b)(1)-(4) (2004) (emphasis added).

21 69 Fed. Reg. 57,826, 57,831 (Sept. 28, 2004).

10 (1) Was a lawful permanent resident and is now subject

to a final order of deportation or removal;

(2) Agreed t o plead guilty or nolo contendere to an

offense rendering the alien deportable or

removable, pursuant to a plea agreement made before

April 1, 1997;

(3) Had seven consecutive years of lawful

unrelinquished domicile in the United States prior

to the date of the final administra tive order of

deportation or removal ; and

(4) Is otherwise elig ible to apply for section 212(c)

relief under the standar ds that were in effect at

the time the alien’s plea wa s made, regardless of

when the plea was entered by the court. 20

Th e third requirement clearly provides that, in order to qualify

for § 212(c) relief, an alien must accrue seven years of lawful

domicile by the date of the alien’s final order of deportation. In

its response to comments received on this provision during the

notice and comment period, the Department of Justice explicitly

rejected the recommendation that the regulation be amended to

require that an al ien have seven consecutive years of lawful

domicile “at the time the plea was entered” in order to qualify for

§ 212(c) relief under the speci al motion. 2 1 The Department

buttressed this refusal by observing that the “Board [of

Immigration Appeals] has long held that an alien’s lawful domicile

terminates upon the entry of the final administrative order of22 Id. (citing In re Cerna , 20 I&N Dec. 399 (BIA 1991)).

23 We need not conduct a Chevron analysis here as our holding in this case

r ests upon our interpretation of St. Cyr

, and does not require a f inding

regarding the appropriate level of deference to be afforded the regulation. S ee

Edelman v. Lynchburg College

, 535 U.S. 106, 114 n.8 (2002) (noting that there is

no need to resolve deference issues when the need for deference is obviated by

the court’s independent decision to adopt the rule set forth in the regulation).

11 deportation.” 2 2 Although the regulation applies specifically to

special motions for § 212(c) relief, we note that it constitutes

relevant persuasive authority in this habeas appeal. 23

Because the law of our circuit at the time Alvarez entered his

guilty plea allowed aliens to accrue additional time toward their

total period of continuous unrelinquished domicile following their

plea of guilty to a removable offense, we find that Alvarez need

not have accrued seven years of lawful domicile at the time of his

plea in order to be eligible for § 212(c) relief under St. Cyr.

The district court erred in holding otherwise.

B

We next address the Government’s argument that the date that

judgment of conviction is entered determines whether application of

the IIRIRA bar to an alien’s § 212(c) claim for relief is

impermissible under St. Cyr

. Under this interpretation of S t. Cyr

,

an alien who, like Alvarez, pleaded guilty to a removable offense

before the effective date of the IIRIRA, but had the misfortune of

having his or her date of final conviction delayed until after the

e ffective date, would be precluded from applying for § 212 (c)24 533 U.S. at 314-15 (“Two important legal consequences ensued fr o m

respondent’s entry of a guilty plea in March 1996 : (1) He became subject to

deportation, and (2) he became eligible for a discretionar y waiver of that

deportation under the prevailing interpretation of § 212(c).”).

25 Id. at 321-24.

26 Id. at 321-22.

12 relief.

In support of this interpretation, th e Government points to

the Supreme Court’s observation in St. Cyr that one of the

important consequences of an alien’s guilty plea is the fact that

he or she becomes subject to deportation. 2 4 Noting that an alien

cannot become subject to deportation unti l after conviction and

e ntry of final judgment, the Government reasons that the Court’s

observation indicates its intent to place the date that judgment of

conviction is entered at the center of its retroactivity analysis

in St. Cyr

.

This interpretation ignores both the language of St. Cyr and

the policy underlying it. In S t. Cyr

, the Court repeatedly

emphasized the date of an alien’s guilty plea as the point at which

the alien relies to his detriment upon the availability of § 212(c)

relief. 25 Significantly, the Court observed that “[p]lea agreements

involve a quid pro quo between a criminal defendant and the

government” in whic h the defendant waives several of his

constit utional rights in “exchange for some perceived benefit.” 2 6

The Court found that, prior to the AEDPA and IIRIRA, aliens “almost

certainly” pleaded guilty to removable crimes in reliance upon the27 Id. at 325.

28 Id. at 326 (emphasis added).

29 294 F.3d 552 (3d. Cir. 2002).

13 l ikelihood of being granted § 212(c) relief, rendering the

elimination of § 212(c) relief by the IIR IRA an act possessed of

“obvious and severe retroactive effect.” 27 The Court concluded by

holding that § 212(c) relief must remain a vailable for aliens

“whose convictions were obtained through plea agreements ,” and who

“would have been eligible for § 212(c) relief at the time of their

plea under the law then in effect.” 28 The focus of these words upon

the date of a n alien’s plea as the point at which an alien’s

reliance interest arises is unmistakable.

The Government also relies upon the decision of the Third

Circuit in Perez v. Elwood

. 29 In P erez

, the Third Circuit held that

an alien was not eligib le to apply for § 212(c) relief when,

following a jury trial, he was not convicted until almost three

months after the effective date of the IIRIRA. P erez is

disti nguishable from the present case on two important grounds.

First, Perez dealt with an alien who had refused to enter a guilty

plea and was subsequently tried by a jury. Second, the alien in

Perez argued that he was entitled to § 212(c) relief on grounds

that the criminal conduct underlying his conviction occurred before

the waiver’s repeal.

Unlike Alvarez , the alien in Perez did not waive important30 See Rankine

, 319 F.3d at 102 (“Unlike aliens who pled guilty so as to

ensure their eligibility for relief, the petitioners here and others like them

aimed to eliminate the possibility of deportation altogether by being found not

guilty of the crimes of w hich they were accused.”); A rmendariz-Montoya v.

Sonchik

, 291 F.3d 1116, 1121 (9th Cir. 2002) (“Unlike aliens who pleaded guilty,

aliens who elected a jury trial cannot plausibly claim that they would have acted

any differently if they had known about [the AEDPA].”); LaGuerre v. Reno

, 164

F.3d 1035, 1041 (7th Cir. 1998) (“It would border on the absurd to argue

that

. . . aliens might have de cided not to commit drug crimes, or might have

resisted conviction more vigorously, had they known that if they were not only

imprisoned but also, when their prison term ended, ordered deported, they could

not ask for a discretionary waiver of deportation.”); but see Ponnapula

, 373 F.3d

at 494 (finding that alien who rejected a plea agreement and went to trial did

so in reliance upon the availability of § 212(c) relief).

14 constitutional rights in order to secure an opportunity to apply of

f or § 212(c) relief. Rather, the alien in P erez opted to go to

trial, and subseq uently advanced the tenuous (and ultimately

unsuccessful) argument that his eligibility to apply for § 212(c)

relief under St. Cyr was properly dictated by the date on which his

criminal conduct occurred. A number of courts have rejected this

argument, finding that those aliens who opted to go to trial prior

t o § 212(c)’s repeal lacked reliance upon § 212(c) relief,

precluding a finding of impermissible retroactivity. 30 Alvarez, on

the other hand, aff i rmatively waived his constitutional trial

rights in reliance upon an opportunity to seek § 212(c) relief.

Thus, unlike the alien in Perez

, Alvarez acquired an important

reliance interest entitled to protection as of the date that it

came into being – the date of his plea.

This conclusion finds support not only in the language of St.

Cyr

, but in the regulations recently promulgated by the Department

of Justice as well. As we noted, the second requirement for an31 8 C.F.R. § 1003.44(b)(2).

32 8 C.F.R. § 1212.3(f)(4)(i) (2004) (emphasis added).

33 69 Fed. Reg. at 57,829 (emphasis added).

15 alien to be eligible for § 212(c) relief via a special motion is

that the alien “[a]greed to plead guilty or nolo contendere to an

offense rendering the alien deportable or removable, pursuant to a

plea agreement made before April 1, 1997.” 31 This regulation says

nothing about the “date of conviction,” requiring only that the

alien enter a plea prior to the effective date of the IIRIRA in

order to qualify for § 212(c) relief. A second newly promulgated

regulation provides that “[a]n alien whose convictions for one or

more aggravated felonies were entered pursuant to plea agreements

made on or after November 29, 1990, but prior to April 24, 1996, is

ineligible for section 212(c) relief only if he or she has served

a term of imprisonment of five years or more for [specific]

aggravated

. . . felonies.” 32 In response to comments on these

regulations, the Department of Justice found that, “consistent with

the Supreme Court’s decision in S t. Cyr

, the key in deciding the

extent to which an alien is eligible for section 212(c) relief

rests on the available relief at the time the alien and the

prosecutor made the plea agreement .” 33

We find that the date of a p lea of guilty, and not the date

that judgment of conviction is ultimately entered, is determinative

of whether the retroactive application of the IIRIRA bar to an16

alien’s claim for § 212(c) relief is impermissible under St. Cyr

.

Accordingly, because he pleaded guilty before the effective date of

the IIRIRA, Alvarez is not precluded from seeking § 212(c) relief.

III

In summary, we hold that, when an alien enters into a plea

bargain, the retroactivity analysis set forth in St. Cyr is

triggered by the date of the guilty plea and no t the date that

judgment of conviction is entered. In addition, we hold that an

alien need not have accrued seven years o f continuous,

unrelinquished domicile at the time of his plea in orde r to be

eligible for § 212(c) relief under St. Cyr

. Here, Alvarez pleaded

guilty to the offense forming the basis for his removal proceedings

before § 212(c) was repealed by the IIRIRA. In addition, he

accrued over seven years of unrelinquished domicile prior to the

initiation of his removal proceeding. Accordingly, we reverse the

district court’s order denying Alvarez habeas relief, and remand to

the district court with instructions to grant Alvarez’s hab eas

petition.

REVERSED and REMANDED with instructions.