In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2466

NELSON I. VELEZ-LOTERO,

Petitioner-Appellee,

v.

DEBORAH ACHIM, Interim Field Office Director,

U.S. Immigration and Customs Enforcement,

MICHAEL GARCIA, Assistant Secretary of

U.S. Immigration and Customs Enforcement, 

ALBERTO R. GONZALES, Attorney General of

the United States, et al.,

Respondents-Appellants.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 C 3615—Robert W. Gettleman, Judge.

____________

ARGUED JANUARY 13, 2005—DECIDED JULY 11, 2005

____________

Before ROVNER, EVANS and SYKES, Circuit Judges.

SYKES, Circuit Judge. Nelson Velez-Lotero, a citizen of

Columbia, pled guilty to a controlled substance offense in

Illinois in 1995 and was later ordered deported on the basis

of that conviction. After serving almost seven years of a

seventeen-year prison sentence, Velez-Lotero was paroled
2 No. 04-2466

and his custody was transferred to immigration authorities.

He then filed a motion to reopen his case in the immigration court, claiming eligibility for discretionary waiver of

inadmissibility under § 212(c) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1182(c), notwithstanding

his conviction.

Section 212(c) was repealed by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”); it was replaced by a narrower discretionary

relief provision that excludes from eligibility anyone previously convicted of an aggravated felony, including drug

offenses like Velez-Lotero’s. However, in INS v. St. Cyr, 533

U.S. 289 (2001), the Supreme Court held that the repeal

could not be retroactively applied to aliens whose convictions were obtained by guilty pleas entered prior to

IIRIRA’s effective date. The immigration judge (“IJ”) denied

Velez-Lotero’s motion to reopen, concluding that although

the repeal of § 212(c) could not be applied to Velez-Lotero

under St. Cyr, he was otherwise ineligible for § 212(c)

discretionary relief because pre-IIRIRA law precluded such

relief for aliens who had served five years or more in prison

on an aggravated felony conviction.

The district court granted Velez-Lotero’s habeas corpus

petition, holding that under St. Cyr, eligibility for § 212(c)

discretionary relief is determined at the time of the alien’s

guilty plea. On this reading of St. Cyr, the district court

concluded that Velez-Lotero was eligible for § 212(c) relief

because at the time of his guilty plea he had not yet served

five years’ imprisonment.

We reverse. The district court misapplied St. Cyr. The

retroactive application of the repeal of § 212(c) is not at issue here. In denying Velez-Lotero’s motion to reopen, the IJ

did not retroactively apply IIRIRA’s repeal of § 212(c);

rather, the immigration judge concluded, correctly, that

Velez-Lotero was ineligible for § 212(c) relief under pre-
No. 04-2466 3

IIRIRA law because at the time he applied for relief he had

served more than five years in prison on an aggravated

felony conviction.

I. Background

Velez-Lotero, a native and citizen of Columbia, entered

the United States in 1986 as an immigrant. On February 1,

1995 he pled guilty to possession of a controlled substance

with intent to deliver in Illinois state court and was sentenced to a seventeen-year term of imprisonment. In August

of 1996, the Immigration and Naturalization Service issued

an order to show cause, charging Velez-Lotero with

deportability under sections 241(a)(2)(A)(iii) and 241(a)(2)

(B)(i) of the INA. At a deportation hearing on March 4,

1997, Velez-Lotero admitted the allegations contained in

the order, conceded deportability, and sought no relief. The

IJ ordered him deported to Columbia and Velez-Lotero did

not appeal.

On February 1, 2002, after serving almost seven years in

prison, Velez-Lotero was paroled and his custody was

transferred to immigration authorities. On June 19, 2002,

he moved to reopen his deportation case, claiming eligibility

for discretionary relief under § 212(c) of the INA, 8 U.S.C.

§ 1182(c) and citing the Supreme Court’s then-recent

decision in St. Cyr. In St. Cyr, the Supreme Court held that

the repeal of § 212(c) was impermissibly retroactive when

applied to aliens who pled guilty prior to IIRIRA’s effective

date; therefore, the Court concluded, discretionary relief

under § 212(c) “remains available to 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.” St. Cyr, 533 U.S. at 326.

In his motion to reopen, Velez-Lotero asserted that under

8 U.S.C. § 1182(c) (1994)—the “law then in effect” at the
4 No. 04-2466

time of his plea—§ 212(c) relief was available to a criminal

alien facing deportation who had not served five years’

imprisonment. Velez-Lotero contended that because he had

not served five years in prison at the time of his guilty plea,

he was eligible for § 212(c) relief pursuant to the Supreme

Court’s decision in St. Cyr. Velez-Lotero also requested

protection under Article 3 of the United Nations Convention

Against Torture.

The IJ held that Velez-Lotero was ineligible for a § 212(c)

waiver because he requested relief only after serving more

than five years in prison for an aggravated felony, which

made him statutorily ineligible under the law as it stood at

the time of his plea. The IJ also ruled that Velez-Lotero’s

petition for relief under the Convention Against Torture

was untimely; aliens seeking relief under the Convention

and whose deportation orders became final before March 22,

1999, must have filed their motions to reopen by June 21,

1999. See 8 C.F.R. § 208.18(b)(2). Velez-Lotero’s deportation

order became final shortly after March 4, 1997, so he was

required to file for relief by June 21, 1999, but did not. In

denying Velez-Lotero’s claim under the Convention, the IJ

did not consider Velez-Lotero’s argument that the June 21,

1999, filing deadline was arbitrary and capricious, being

only three months after the legislation came into effect.

Velez-Lotero appealed to the Board of Immigration

Appeals (“BIA”), which affirmed the IJ’s decision without

opinion under its streamlining procedure. See 8 C.F.R.

§ 1003.1(e)(4). He then sought review in this court, but we

dismissed the petition pursuant to the jurisdiction-stripping

provisions of IIRIRA. See 8 U.S.C. § 1252(a)(2)(c); CalcanoMartinez v. INS, 533 U.S. 348 (2001). Velez-Lotero then filed

a petition for a writ of habeas corpus in the district court.

The district court granted relief, remanding the case to the

IJ for a new hearing. Velez-Lotero v. Achim, 312 F. Supp. 2d

1097, 1098 (N.D. Ill. 2004). The court read St. Cyr to

require that Velez-Lotero’s eligibility for § 212(c) relief be
No. 04-2466 5

determined as of the time of his guilty plea; because VelezLotero had not served five years’ imprisonment at the time

of his plea, the court held he was not precluded from

§ 212(c) eligibility under pre-IIRIRA law. Id.

In reaching this conclusion, the court noted that prior to

§ 212(c)’s repeal, the BIA had held that “[t]he plain language of section 212(c) . . . now bars such relief to any alien

who has been convicted of an aggravated felony or felonies

and who ‘has served,’ not merely been sentenced to, a term

of imprisonment of at least five years.” Id. (quoting In re

Ramirez-Somera, 20 I&N Dec. 564, 566 (BIA 1992)). The

district court reasoned that under St. Cyr, the operative

date for determining § 212(c) eligibility is the date of the

alien’s guilty plea. Id. at 1100. Velez-Lotero obviously had

not served five years in prison for an aggravated felony at

the time of his guilty plea, so the district court concluded

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

and the denial of his motion to reopen was therefore improper. Id.

The district court also held that remand was appropriate

because the IJ had not considered Velez-Lotero’s argument

that the three-month “window” to file for relief under the

Convention Against Torture was arbitrary and capricious.

The court also instructed the IJ to consider Velez-Lotero’s

request for a bond under 8 U.S.C. § 1226. The respondents—

immigration authorities responsible for Velez-Lotero’s

custody (hereafter collectively “the government”)—appealed.

II. Discussion

A. Eligibility for § 212(c) Waiver

The INA of 1952 excluded from the United States several

classes of aliens, including aliens convicted of crimes

involving moral turpitude or illicit trafficking in narcotics.

This rule included a proviso, in § 212(c), granting the
6 No. 04-2466

Attorney General broad discretion to admit certain aliens

otherwise excludable under the Act. Section 212(c) provided

that “[a]liens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and not

under an order of deportation, and who are returning to a

lawful unrelinquished domicile of seven consecutive years,

may be admitted in the discretion of the Attorney General.”

8 U.S.C. § 1182(c). The BIA and federal courts later broadened the scope of this provision by holding that lawful

permanent residents were eligible to apply for § 212(c) relief

in deportation proceedings as well. See Francis v. INS, 532

F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26

(BIA 1976). Eligibility for § 212(c) relief does not mean

entitlement to relief. Section 212(c) limits the class of

persons who are eligible to be considered for relief by the

Attorney General; the ultimate decision whether to grant

such relief is subject to administrative regulation and BIA

decisional law, none of which is at issue in this case.

In 1990 Congress amended § 212(c) to preclude relief for

“an alien who has been convicted of one or more aggravated

felonies and has served for such felony or felonies a term of

imprisonment of at least 5 years.” Pub. L. No. 101-649, 104

Stat. 5052 (November 29, 1990); 8 U.S.C. § 1182(c). This

new version of § 212(c) applied to applications for relief filed

after its date of enactment. See Cortes-Castillo v. INS, 997

F.2d 1199, 1202 n.1 (7th Cir. 1993). Congress again modifed

§ 212(c) as part of the 1996 Antiterrorism and Effective

Death Penalty Act (“AEDPA”), specifying a host of offenses

for which conviction (and consequent prison time) would

preclude waiver eligibility. Pub. L. No. 104-132, 110 Stat.

1214 (April 24, 1996). Later that same year, Congress

passed IIRIRA, which repealed § 212(c) entirely. In its place

Congress enacted 8 U.S.C. § 1229b, which gives the Attorney General authority to cancel removal for a narrow class

of inadmissible or deportable aliens; notably, that class

excludes anyone previously convicted of “any aggravated
No. 04-2466 7

felony.” 110 Stat. 3009-597 (creating 8 U.S.C. § 1229b); see

also St. Cyr, 533 U.S. at 297. The new statute applies to

aliens in removal proceedings after April 1, 1997.

In St. Cyr, the Supreme Court, applying the retroactivity

analysis set forth in Landgraf v. USI Film Prods., 511 U.S.

244 (1994), held that the repeal of § 212(c) was impermissibly retroactive as applied to aliens who pled guilty prior

to IIRIRA’s effective date in the expectation that they would

continue to be eligible for § 212(c) waivers. St. Cyr, 533 U.S.

at 326. 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,’ ” and

therefore could not be retroactively applied. Id. at 321.

St. Cyr does not resolve this case. We accept, as the IJ

did, that under St. Cyr the repeal of § 212(c) does not apply

to Velez-Lotero, because he pled guilty prior to IIRIRA’s effective date; nevertheless, he remains ineligible for § 212(c)

relief under the law in effect at the time of his guilty plea.

The law then in effect was the version of § 212(c), as

amended in 1990, which denied eligibility for discretionary

relief to any alien convicted of an aggravated felony who

had served five or more years in prison for that offense.

Under that law, Velez-Lotero is statutorily ineligible for

relief; when he sought § 212(a) relief, he had served more

than five years in prison for an aggravated felony.

The district court read St. Cyr to require that eligibility

for § 212(c) relief be evaluated on the basis of the facts—

not just the law—in existence at the time of a criminal

alien’s guilty plea, regardless of when application for relief

is made or what has transpired since the plea. Put differently, under the district court’s interpretation of St. Cyr,

any permanent resident alien who pled guilty to an aggravated felony before April 1, 1997 (IIRIRA’s effective date) is
8 No. 04-2466

perpetually eligible for a § 212(c) waiver, regardless of

whether he has served five years or more in prison at the

time he applies for relief. This interpretation effectively

nullifies the pre-IIRIRA statute. St. Cyr cannot be read so

broadly.

Enrico St. Cyr pled guilty to an aggravated felony in

March 1996 and deportation proceedings against him were

initiated in 1997, after the effective date of IIRIRA. St. Cyr,

533 U.S. at 293. The Supreme Court held only that the

repeal of § 212(c) could not be applied to him retroactively;

the Court did not evaluate his case under the pre-IIRIRA

statute. We acknowledge that the language of the Court’s

ultimate holding contains a suggestion that the date of an

alien’s guilty plea is the operative date for determining

eligibility for a § 212(c) waiver: “We therefore hold 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.” Id. at 326. However, as we have noted, using

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

§ 212(c) eligibility is determined effectively renders the preIIRIRA statute a nullity; the pre-IIRIRA statute precludes

eligibility for an alien who has been convicted of an aggravated felony and who “has served” five or more years in

prison, a circumstance that obviously can never exist on the

date of guilty plea.

St. Cyr was a case about the retroactive effect of IIRIRA’s

repeal of § 212(c); we do not believe the Supreme Court

intended to disturb the operation of the pre-IIRIRA statute.

Nothing in St. Cyr purports to alter the rule that the 1990

version of § 212(c) applies to applications for relief submitted after its effective date, November 29, 1990, CortesCastillo, 997 F.2d at 1202, or the rule that eligibility is

determined as of the date of the hearing at which relief is

requested, Ramirez-Somera, 20 I&N Dec. at 566. We
No. 04-2466 9

1 The government urges us to consider an alternative ground

for denial of Velez-Lotero’s claim under St. Cyr. It asks that we

adopt the reasoning of the Third Circuit in Dipeppe v. Quarantillo,

337 F.3d 326 (3d Cir. 2003), which limited the St. Cyr exception

to aliens who subjectively relied upon the availability of § 212(c)

relief at the time of their plea agreements, for instance, by

bargaining explicitly for sentencing recommendations of less than

five years. Because we have resolved this appeal on other grounds,

we need not explore this argument.

conclude that although St. Cyr requires that the law in

effect at the time of Velez-Lotero’s guilty plea be applied to

his application for § 212(c) relief, it does not require that his

application for relief be considered as if it had been filed or

heard on the date of his plea. Velez-Lotero did not seek

§ 212(c) relief until after he had served more than five years

in prison for an aggravated felony. This circumstance—not

the retroactive application of the repeal of § 212(c)—disqualified him from eligibility for discretionary relief under

the law in effect at the time of his guilty plea.1

B. Request for Bond Under 8 U.S.C. § 1226

As we have noted, the district court also remanded this

case to the IJ for consideration of Velez-Lotero’s argument

that the three-month “window” for filing his claim under the

Convention against Torture was arbitrary and capricious.

The district court instructed the IJ on remand to consider

Velez-Lotero’s request for a bond under 8 U.S.C. § 1226.

The government has not appealed the remand of VelezLotero’s claim under the Convention, but has challenged the

district court’s order that the IJ consider Velez-Lotero’s

request for bond. Velez-Lotero asserted in his habeas petition that mandatory detention without bond of all aggravated felons in deportation proceedings is unconstitutional,

because by failing to distinguish permanent resident aliens
10 No. 04-2466

from other kinds of aliens the bond statute is not “narrowly

tailored.” The district court did not address that argument;

it said nothing about the issue and simply instructed the IJ

to “consider petitioner’s request for a bond.”

Velez-Lotero was released on “file custody review” by U.S.

Immigration and Customs Enforcement on November 26,

2004, after the government filed its brief in this court. In

his brief to this court, filed after his release, Velez-Lotero

did not respond to the government’s appeal of the district

court’s order on the bond issue, contending that by releasing

him the government has constructively abandoned the issue.

But at oral argument the government made clear that it has

not abandoned its appeal on the bond issue, as well it

should not, because if Velez-Lotero is detained again at

some point during remand proceedings (and we have not

been briefed on the terms and conditions of “file custody

review”) then the issue of bond eligibility will simply

reappear.

The district court erred. Velez-Lotero is not eligible for a

bond hearing under 8 U.S.C. § 1226. The statute provides,

in relevant part:

The Attorney General shall take into custody any alien

who—

. . .

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) [crimes involving moral turpitude], (A)(iii) [“Aggravated felony”] . . .

when the alien is released, without regard to whether

the alien is released on parole, supervised release, or

probation, and without regard to whether the alien may

be arrested or imprisoned again for the same offense.

8 U.S.C. § 1226(c)(1) (emphasis added). The Supreme Court

has held that § 1226(c) “is a constitutionally permissible

part of the process.” Demore v. Kim, 538 U.S. 510, 531
No. 04-2466 11

(2003); see also Gonzalez v. O’Connell, 355 F.3d 1010, 1019-

20 (7th Cir. 2004). The only exception to this provision is for

aliens admitted into the Witness Protection Program whom

the Attorney General is satisfied do not pose a danger to the

safety of persons or property and who are likely to appear

for their hearings. See 8 U.S.C. § 1226(c)(2). Velez-Lotero is

not in the Witness Protection Program. He is ineligible for

a bond hearing.

For the foregoing reasons, we REVERSE the district court’s

grant of habeas relief on the question of Velez-Lotero’s

eligibility for a § 212(c) waiver. The district court’s order

regarding Velez-Lotero’s eligibility for bond is also

REVERSED. The case is REMANDED for further proceedings

consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-11-05