United States Court of Appeals

Fifth Circuit



## FILED

January 13, 2006

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 05-50543

Summary Calendar

_______________



### E NRIQUE 

### H ERNANDEZ 

### -C ASTILLO



### ,

Petitioner-Appellant,

VERSUS



### M ARC 

### J. M OORE



### ,

AS F IELD D IRECTOR FOR D ETENTION AND R EMOVAL

FOR THE I MMIGRATION AND C USTOMS E NFORCEMENT ;



### B UREAU OF 

### I MMIGRATION AND 

### C USTOMS 

### E NFORCEMENT



### ,

AS AN A GENCY OF THE G OVERNMENT OF THE U NITED S TATES OF A MERICA ;



### D EPARTMENT OF 

### H OMELAND 

### S ECURITY



### ,

AS AN A GENCY OF THE G OVERNMENT OF THE U NITED S TATES OF A MERICA ;



### M ICHAEL 

### C HERTOFF



### , S ECRETARY

, D EPARTMENT OF H OMELAND S ECURITY ;



### A LBERTO 

### R. G ONZALES



### , U.S. A TTORNEY G ENERAL

,



### Respondents-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________2

Before S MITH

, G ARZA , and P RADO

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Enrique Hernandez-Castillo, a removed alien, challenges the ruling of an immi grati on

(“IJ”) that he is not eligibl e for a waiver of

removal under now-repealed § 212(c) of the

Immigration and Nationality Act (“INA”).

Treating this action a s a petition for review,

and agreeing with the ruling of the IJ, we vacate the finding of habeas jurisdiction and deny

the petition for review.

I.

Hernandez-Castillo, a native and citizen of

Mexico, was admitted into the United Stat es

as a lawful p e rmanent resident in 1985. In

1989 he was tried to a jury and c onvicted of

felo ny indecency with a child. The Immigration and Naturalization Service (“INS”) 1 init iated removal proceedings against HernandezCastillo in 2001, asserting that (1) he was removable pursuant to 8 U.S.C. § 1227(a)(2)-

(A)(iii) on the ground that he had been convicted of an “aggravated felony,” which is defined by 8 U.S.C. § 1101(a)(43)(A) to include

s e xual abuse of a minor, and (2) he was removable pursuant to 8 U.S.C. § 1227(a)-

(2)(A)(i) because he h a d been convicted of a

crime of moral turpitude, for which a sentence

of one year or longer could have been imposed, within five year s after his admission

into the United States. H ernandez-Castillo conceded that he was

removable as charged, but requested a waiver

of removal under § 212(c), a prov i sion that

was fo rmerly codified at 8 U.S.C. § 1182(c)

but had been repealed by the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”), Pub. L. No. 104-208,

110 Stat. 3009-597. The repeal was effective

immediately upon its enactment.

Hernandez-Castillo argued that despite the

repealer, he is entitled t o pursue relief under

that provision pursuant to INS v. St. Cyr , 533

U.S. 289, 326 (2001), in which the Court stated that “§ 212(c) re lief remains available for

aliens

. . . whose convictions were obtained

t hrough plea agreements and who, notwithstanding those convictions, would have been

e ligible for § 212(c) relief at the time of t heir

plea under the law then in effect.”

The IJ found that Hernandez-Castillo was

ineligible for § 212(c) relief, S t. Cyr notwithst anding, because he had been convicted of a

removable offense following a jury trial rather

than through a guilty plea. In November 2002

the IJ ordered th at Hernandez-Castillo be removed to Mexico. Hernandez-Castillo filed a

t imely appeal to the BIA, whic h affirmed the

removal order without opinion in March

2004.

On August 9, 2004 (the same day on which

he had been ordered to re port to the San

Antonio office of the Department of Homeland

Security for removal), Hernand ez-Castillo filed

a petition for writ of habeas corpus challenging

the removal order on the ground th at he had

been unlawfull

y denied the right to seek a

waiver of the order. He also requested a temporary restraining order and preli minary injunctive relief to prevent the immigration authorities from removing him before the district

court ruled on the habeas peti t ion. But, be1 The INS ceased to exist on March 1, 2003.

It s enforcement functions have been assumed by

the Bureau of Immigration and Customs Enforcement (“BICE”), an agency within the Department

of Homeland Security. Because many of the events

in this case took place before the reorganization of

i m migration enforcement duties, we continue to

refer to the agency as the INS.3

cause the removal had been scheduled to take

place on that very day, Hernandez-Castillo was

removed to Mexi co before the district court

could rule on the request for a tem porary

restraining order.

On August 20, 2004, the government filed

a motion to dismiss the habeas petition, which

the district court granted in March 2005, after

first finding that it had jurisdiction to entertain

the pet ition. The court held that HernandezCastillo was ineligible for § 212(c) relief. Hernandez-Castillo appealed that order on March

29, 2005.

II.

After Hernandez-Castillo filed his appeal,

Congress on May 11, 2005, enacted the REAL

ID Act, Pu b. L. No. 109-13, 119 Stat. 231.

The Act explicitly forecloses habeas review of

removal orders and provides that a petition for

review is the sole and exclusive means of judicial review for all removal orde rs except

those issued purs uant to 8 U.S.C. § 1225-

(b)(1). S ee Pub. L. No. 109-13, 119 Stat. 231,

310, § 106(a)(1)(B). The Act specifies that a

habeas petition pending before a district court

as of the REAL ID Act’s effective date is to be

transferred to the appropriate court of appeals

and converted into a petition for review. See

Pub. L. No. 109-13, 119 Stat. 231, 311,

§ 106(c). Congress did not, however, dictate

what was to be done with habeas petitio ns,

such as Hernandez-Castillo’s, that were already on ap p eal as of the REAL ID Act’s effective date.

Nevertheless, we recently held in Rosales v.

BICE

, 426 F.3d 733, 736 (5th Cir. 2005) (per

curiam), cert. denied

, 2006 U.S . LEXIS 619

(U.S. Jan. 9, 2006), that “despite Congress’s

silence on this issue, habeas petitions on appeal

as of May

11, 2005, . . . are properl yconverted into petitions for review.” 2 Pursuant to

the REAL ID Act, we therefore vacate the

district c o urt’s finding of habeas jurisdiction

and convert the habeas petition into a petition

for review of the removal order.

III.

We must now determine whether we have

jurisdiction to entertain this petition for review

under the REAL ID Act. The Act amends 8

U.S.C. § 1252(a)(2)(C) to preclude all judicial

review, habeas or otherwise, where a removal

order is based on, inter alia

, the alien’s commission of an aggravated felony. See Pub. L.

No. 109-13, 119 Stat. 231, 310,

§ 106(a)(1)(A)(ii). The Act also altered the

INA to provide that

[n]othing in subparagraph (B) or (C), or

in any ot her provision of this chapter

(other than this section) which limits or

eliminates judicial revie w

, shall be construed as precluding review of constitutional claims o r questions of law raised

upon a petition for review filed with an

appropriate court of

appeals in accordance with this section.

8 U.S.C. § 1 252(a)(2)(D). Because Hernandez-Castillo’s claim that the IJ erred in applying the repeal of § 212(c) to his case presents

a question of law, we have jurisdiction to consider the petition.

IV.

We review the BIA’s conclusions of law de

novo

, although we defer to the BIA’s interpre2 The Third and Ninth Circuits have reached the

same conclusion. See Alvarez-Barajas v. Gonzales

, 418 F.3d 1050, 1052-53 (9th Cir. 2005);

Bonhometre v. Gonzales

, 414 F.3d 442, 4 4 6 (3d

Cir. 2005).4

tation of immigration regulations if that interpretati on is reasonable. S ee Lopez-Gomez v.

Ashcroft , 263 F.3d 442, 444 (5th Cir. 2001).

Although we generally have auth o rity to review only the order of the B IA, where, as i n

this case, the BIA summarily affirms the ruling

of the IJ without an opinion, we rev iew the

IJ’s order. S ee Mikhael v. INS

, 115 F.3d 299,

302 (5th Cir. 1997). In this case, no deference

is owed to the IJ’s conclusion of law regarding

the availabilit

y of § 212(c) relief because that

conclusion was based on principles of retroacti vity rather than the content of the immigration regulations.

There is a two-step process for determining

whether a statute (or the repeal thereof) has an

impermissible retroactive effect. First, a statute must be given

ret roactive effect if Congress has communicated, with clarity, its intent

that the law be applie d retroactively. S ee St.

Cyr , 533 U.S. at 316 (citing Martin v. Hadix

, 527 U.S. 343, 352 (1999)). Second, where a

clear statement from Congress is lacking, there

is an impermissible retroactive effect where the

application of the statute “attac h es new legal

consequences to events completed before [the

statute’s] enactment.” L andgraf v. USI Film

Prods. , 511 U.S. 244, 270 (1994).

In St. Cyr , the Court held that in repealing

§ 212(c), Congress did not give a clear indication of its intent retroactively to strip the availabilit y of § 212(c) relief away from aliens convicted of removable offenses before the enactment of IIRIRA. S t. Cyr

, 533 U.S. at 320. In

addition, the Court held that “IIRIRA’s elimination of any possibility o f § 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 consi d erations alr e ady past.” 533 U.S. at 321 (internal citations and quotati ons omitted). Therefore, the C o urt concluded that the repeal of § 212(c)

cannot apply retr o actively to pre-enactment

convictions of a removable offense pursuant to

a guilty plea.

The Court did not address whether the application of IIRIRA to pre-enactment convictions following a jury trial, rather than pursuant to a guilty plea, yields an imp e rmissible

ret roactive effect. In the wake of S t. Cyr

, at

least two circuits have concluded that there is

no impermissible retroactive eff ect where the

c o nviction was not the result of a plea. S ee

Chamb ers v. Reno , 307 F.3d 284 (4th Cir.

2002); Rankine v. Reno

, 319 F.3d 93 (2nd Cir.

2003). The Rankine court stated that

aliens who chose to go to trial are in a different position with respect to IIRIRA than

aliens like St. Cyr who chose to plead guilty.

. . . First, none of these petitioners detrimentally changed his position in reliance

o n continued eligibility for § 212(c) relief

. . . . Second, the petitioners have pointed

to no conduct on their part that reflects an

intention to preserve their eligibilit y for relief under § 212(c) by going to trial. If they

had pled guilty, petitioners would have

participated in the quid pro q u o relationship, in which a greater expectation of relief

is provided in exchange for forgoing a trial,

t hat gave rise to the reliance interest emphasized by the Supreme Court in St. Cyr

. As the Court made clear, it was that rel i

ance, and the conseq uent change of immigration status, that produced the impermissible retroactive effect of IIRIRA. St.

Cyr , 533 U.S. at 325 .

. . . Here, petitioners neither did anyt hing nor surrendered

any rights that would give rise to a comparable reliance interest.

Rankine

, 319 F.3d at 99-100. We adopt this

reasoning and conclude that the application of5

IIRIRA’s repe al of § 212(c) to HernandezCastillo doe s no t create an impermissible retroactive effect. Accordingly, we agree with

the IJ’s order declaring Hernandez-Castillo ineligible for § 212(c) relief. 3

I n summary, we VACATE the dist rict

court’s finding of habeas jurisdiction, convert

the habeas petition

into a petition for review,

and DENY the petition for review.

3 Hernandez-Castillo contends that he should

now be given an opportu nity to present evidence

that he had been offered a plea agreemen t before

his trial for felony indecency with a child and chose

instead to tak

e his chances with a jury because §

212(c) relief might be availa ble to him if he were

convicted at trial. He equates the refusal to take a

plea agreement with detrimental reliance on §

212(c). As the R ankine court ma kes clear, however, Hernandez-Castillo’s argument is no nsensical:

Unlike aliens who entered pleas, the petitioners

made no d ecision to abandon any rights and

admit guilt--thereby immediately rendering

themselves deportable--in reliance on the availability of the relief offe

red prior to IIRIRA.

The petitioners decided instead to go to trial, a

decision that, standing alone, had no impact on

their immigration status. Unless and until they

were convicted o f their underlying crimes, the

petitioners could not be deported. The claim

that they relied on the availability of § 212(c)

relief in making the dec ision to go to trial is

therefore somewhat hollow . . . .”

Rankine , 319 F.3d at 99.