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

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m 05-50543

Summary Calendar

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ENRIQUE HERNANDEZ-CASTILLO,

Petitioner-Appellant,

VERSUS

MARC J. MOORE,

AS FIELD DIRECTOR FOR DETENTION AND REMOVAL

FOR THE IMMIGRATION AND CUSTOMS ENFORCEMENT;

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,

AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;

DEPARTMENT OF HOMELAND SECURITY,

AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;

MICHAEL CHERTOFF,

SECRETARY, DEPARTMENT OF HOMELAND SECURITY;

ALBERTO R. GONZALES,

U.S. ATTORNEY GENERAL,

Respondents-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________
2

Before SMITH, GARZA, and PRADO, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Enrique Hernandez-Castillo, a removed alien, challenges the ruling of an immigration

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

removal under now-repealed § 212(c) of the

Immigration and Nationality Act (“INA”).

Treating this action as a petition for review,

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

the petition for review.

I.

Hernandez-Castillo, a native and citizen of

Mexico, was admitted into the United States

as a lawful permanent resident in 1985. In

1989 he was tried to a jury and convicted of

felony indecency with a child. The Immigration and Naturalization Service (“INS”)1

initiated 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

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

(2)(A)(i) because he had been convicted of a

crime of moral turpitude, for which a sentence

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

into the United States.

Hernandez-Castillo conceded that he was

removable as charged, but requested a waiver

of removal under § 212(c), a provision that

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

but had been repealed by the Illegal ImmigrationReformand Immigrant ResponsibilityAct

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 to 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) relief remains available for

aliens . . . whose convictions were obtained

through plea agreements and who, notwithstanding those convictions, would have been

eligible for § 212(c) relief at the time of their

plea under the law then in effect.”

The IJ found that Hernandez-Castillo was

ineligible for § 212(c) relief, St. Cyr notwithstanding, 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 that Hernandez-Castillo be removed to Mexico. Hernandez-Castillo filed a

timely appeal to the BIA, which affirmed the

removal order without opinion in March

2004.

On August 9, 2004 (the same day on which

he had been ordered to report to the San

Antonio office oftheDepartment ofHomeland

Securityforremoval), Hernandez-Castillo filed

a petition for writ of habeas corpus challenging

the removal order on the ground that he had

been unlawfully denied the right to seek a

waiver of the order. He also requested a temporary restraining order and preliminary injunctive relief to prevent the immigration authoritiesfrom removing him before the district

court ruled on the habeas petition. But, be1

 The INS ceased to exist on March 1, 2003.

Its 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

immigration enforcement duties, we continue to

refer to the agency as the INS.
3

cause the removal had been scheduled to take

place onthat veryday, Hernandez-Castillo was

removed to Mexico before the district court

could rule on the request for a temporary

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 petition. The court held that HernandezCastillo wasineligible for § 212(c) relief. Hernandez-Castillo appealed that order on March

29, 2005.

II.

After Hernandez-Castillo filed his appeal,

Congress onMay11, 2005, enacted the REAL

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

The Act explicitly forecloses habeas review of

removal orders and providesthat a petition for

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

those issued pursuant to 8 U.S.C. § 1225-

(b)(1). See 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 ofthe REAL ID Act’s effective date isto 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 petitions,

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

Nevertheless, we recently held inRosales 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 thisissue, habeas petitions on appeal

as of May 11, 2005, . . . are properly converted into petitionsfor review.”2

 Pursuant to

the REAL ID Act, we therefore vacate the

district court’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 other provision of this chapter

(other than this section) which limits or

eliminates judicial review, shall be construed as precluding review of constitutional claims or 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. § 1252(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 oflaw de

novo, although we defer to the BIA’sinterpre2 TheThird 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, 446 (3d

Cir. 2005).
4

tation of immigration regulations if that interpretation is reasonable. See Lopez-Gomez v.

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

Although we generally have authority to review only the order of the BIA, where, as in

this case, the BIA summarily affirmsthe ruling

of the IJ without an opinion, we review the

IJ’s order. See 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 availability of § 212(c) relief because that

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

There is a two-step processfor determining

whether a statute (or the repeal thereof) has an

impermissible retroactive effect. First, a statute must be given retroactive effect if Congress has communicated, with clarity, itsintent

that the law be applied retroactively. See St.

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

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

clearstatement fromCongressislacking, there

is an impermissible retroactive effect where the

application of the statute “attaches new legal

consequencesto events completed before [the

statute’s] enactment.” Landgraf 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 itsintent retroactively to strip the availability of § 212(c) relief away from aliens convicted of removable offenses before the enactment of IIRIRA. St. Cyr, 533 U.S. at 320. In

addition, the Court held that “IIRIRA’s elimination of any 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.” 533 U.S. at 321 (internal citations and quotations omitted). Therefore, the

Court concluded that the repeal of § 212(c)

cannot apply retroactively 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 impermissible

retroactive effect. In the wake of St. Cyr, at

least two circuits have concluded that there is

no impermissible retroactive effect where the

conviction was not the result of a plea. See

Chambers 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

on continued eligibility for § 212(c) relief

. . . . Second, the petitioners have pointed

to no conduct on their part that reflects an

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

had pled guilty, petitioners would have

participated in the quid pro quo relationship, in which a greater expectation ofrelief

is provided in exchange for forgoing a trial,

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

As the Court made clear, it was that reliance, and the consequent change of immigration status, that produced the impermissible retroactive effect of IIRIRA. St.

Cyr, 533 U.S. at 325 . . . . Here, petitioners neither did anything 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 of
5

IIRIRA’s repeal of § 212(c) to HernandezCastillo does not create an impermissible retroactive effect. Accordingly, we agree with

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

In summary, we VACATE the district

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 opportunity to present evidence

that he had been offered a plea agreement before

his trial for felony indecency with a child and chose

instead to take his chances with a jury because §

212(c) relief might be available 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 Rankine court makes clear, however, Hernandez-Castillo’s argument is nonsensical: 

Unlike aliens who entered pleas, the petitioners

made no decision to abandon any rights and

admit guilt--thereby immediately rendering

themselves deportable--in reliance on the availability of the relief offered 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 of their underlying crimes, the

petitioners could not be deported. The claim

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

relief in making the decision to go to trial is

therefore somewhat hollow . . . .” 

Rankine, 319 F.3d at 99.