FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARITA HERNANDEZ DE 

ANDERSON,

No. 05-74132 Petitioner,

Agency No.

v.  A19-921-652

ALBERTO R. GONZALES, Attorney OPINION General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 19, 2006—San Francisco, California

Submission Withdrawn October 20, 2006

Resubmitted August 3, 2007

Filed August 9, 2007

Before: Susan P. Graber, William A. Fletcher, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher;

Partial Concurrence and Partial Dissent by Judge Tallman

9471
COUNSEL

John Ayala and Alma Cobos-Ayala, Law Offices of Cobos &

Ayala, Los Angeles, California, for the petitioner. 

9474 HERNANDEZ DE ANDERSON v. GONZALES
James E. Grimes and Mary Jane Candaux, Office of Immigration Litigation, Washington, D.C., for the respondent. 

OPINION

W. FLETCHER, Circuit Judge: 

Margarita Hernandez de Anderson petitions for review of

the Board of Immigration Appeals’ (“BIA”) dismissal of her

appeal from an order of removal. She contends, first, that the

BIA erred in holding that she failed to meet the requirements

for termination of her removal proceedings under 8 C.F.R.

§ 1239.2(f). Second, she contends that the BIA’s holding that

she was ineligible to apply for suspension of deportation

under former Immigration and Nationality Act (“INA”)

§ 244(a)(2), 8 U.S.C. § 1254(a)(2) (repealed 1997), is an

impermissibly retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, div. C, 110 Stat. 3009. We

agree with Petitioner’s second contention and grant her petition.

I. Background

Petitioner is a 64-year-old native and citizen of Mexico.

She became a lawful permanent resident of the United States

thirty-four years ago, on May 15, 1973, based on her marriage

to a United States citizen whom she had met while she was

living in Mexico. 

On June 3, 1981, Petitioner shot her husband multiple times

at close range, but did not kill him. Petitioner was charged

under California law with attempted murder and with discharging a firearm at an inhabited dwelling. Petitioner’s

defense at trial was that she had shot her husband in selfdefense. She testified that her husband was a heavy drinker

HERNANDEZ DE ANDERSON v. GONZALES 9475
who had subjected her to years of abuse. At the time of the

shooting, she was in the process of getting a divorce. She was

staying in a women’s shelter, but on the day of the shooting

came back to the family home to retrieve some of her belongings. Petitioner testified that her husband threatened to “blow

her brains out” and that she shot him in the driveway before

he could get his gun from his car. 

The jury declined to convict Petitioner of attempted murder. Instead, it returned convictions for attempted voluntary

manslaughter, Cal. Penal Code § 192, and a firearm charge,

id. § 246. Petitioner was sentenced to six years in prison. She

was released in 1985 after serving four years. Petitioner successfully completed probation in 1987. 

Since shortly after her release from prison, Petitioner has

worked as a caregiver to home-bound ill and elderly patients.

Her supervisor describes her as “a wonderful Christian person” and “truly a role model for what a good caregiver should

be.” She states that Petitioner is “so popular with . . . clients”

that Petitioner is “busy to the point of having to turn work

down.” A letter from a family with whom Petitioner lived

beginning in March 1985 “as part of her rehabilitation process” describes how they came to love and admire her: “We

believe that she epitomizes the traits we all admire: trustworthiness, dedication to worthy goals, the ability to learn from

experience, industriousness, self-reliance, or whatever else

one may choose as attributes of a United States citizen[.]” 

Since her release from prison in 1985, Petitioner has annually filed federal income tax returns. She co-owns a house in

Hemet, California. She speaks, reads, and writes English. The

government does not dispute that she has led a law-abiding

life since 1981. 

On August 2, 1995, twenty-two years after she became a

lawful permanent resident and more than ten years after her

release from prison in 1985, Petitioner filed an application for

9476 HERNANDEZ DE ANDERSON v. GONZALES
naturalization. In the application she fully disclosed her 1981

criminal convictions. Petitioner had had no contact with the

Immigration and Naturalization Service (“INS”) either upon

her release from prison in 1985 or in the ten years thereafter.1

Petitioner had been potentially eligible for naturalization as

early as 1990. In 1990, a lawful permanent resident was eligible for naturalization after five years of continuous residence

if, during that five-year period, the applicant could demonstrate that she “ha[d] been and still [was] a person of good

moral character, attached to the principles of the Constitution

of the United States, and well disposed to the good order and

happiness of the United States.” 8 U.S.C. § 1427(a) (1990).

Petitioner’s 1981 convictions and term of imprisonment did

not categorically preclude a finding of good moral character

once five years had elapsed after her release from prison in

1985. See 8 U.S.C. § 1101(f) (1990); Lopez-Castellanos v.

Gonzales, 437 F.3d 848, 851 & n.3 (9th Cir. 2006). 

When Petitioner applied for naturalization in 1995, she had

just become eligible to apply for suspension of deportation if

the INS sought to deport her based on her convictions. See

INA § 244(a)(2), 8 U.S.C. § 1254(a)(2) (1995) (repealed

1997). She had not been eligible to apply for suspension of

deportation until ten years after her release from prison. See

id. (requiring ten years of continuous presence and good

moral character during that period for suspension of deportation); 8 U.S.C. § 1101(f)(7) (1990) (providing that good moral

character cannot be established during a period of imprisonment longer than six months). 

IIRIRA was enacted on September 30, 1996, more than a

year after Petitioner filed her application for naturalization.

1The INS’s functions were transferred to the Department of Homeland

Security on March 1, 2003. See 6 U.S.C. § 542. Many of the events relevant to Petitioner’s appeal occurred before March 1, 2003, and we refer

to the agency as the INS when discussing those events. 

HERNANDEZ DE ANDERSON v. GONZALES 9477
IIRIRA’s effective date was another six months later. See

IIRIRA § 309(a). IIRIRA repealed “suspension of deportation” and replaced it with “cancellation of removal,” a form

of relief not available to Petitioner because she is an alien

convicted of an aggravated felony. See 8 U.S.C.

§ 1229b(a)(3). 

On August 3, 2000, five years after Petitioner filed her

application for naturalization, the INS commenced removal

proceedings against her. On the same day, the INS denied

Petitioner’s naturalization application based on the pendency

of the newly instituted removal proceedings. Petitioner timely

petitioned the INS for review of the denial of her naturalization application. One year later, on September 28, 2001, the

INS denied the petition, again citing the pending removal proceedings. 

In the meantime, on September 26, 2000, Petitioner had

asked the immigration judge (“IJ”) to terminate her removal

proceedings under 8 C.F.R. § 1239.2(f) in order to allow her

naturalization application to go forward. Petitioner contended

that § 1239.2(f) authorized the IJ to determine that she was

prima facie eligible for naturalization but for the pendency of

the removal proceedings, even in the absence of a statement

from the INS to that effect. Petitioner had requested such a

statement from the INS District Director the day before, on

September 25, 2000. The record does not contain a response

from the District Director. 

The IJ denied Petitioner’s request to terminate the removal

proceedings. On August 17, 2001, Petitioner applied to the IJ

for suspension of deportation, arguing that IIRIRA’s repeal of

that relief was impermissibly retroactive as applied to her,

given that she had applied for naturalization in 1995. The IJ

held that Petitioner was removable under IIRIRA and that

suspension of deportation was not an available form of relief.

Cf. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791-92 (9th Cir.

2003) (as amended) (explaining that cases commenced by the

9478 HERNANDEZ DE ANDERSON v. GONZALES
INS after April 1, 1997, are governed by IIRIRA’s permanent

rules). 

The BIA dismissed Petitioner’s appeal on December 10,

2003. The BIA rejected Petitioner’s argument that the IJ erred

in refusing to terminate the removal proceedings under

§ 1239.2(f), holding that Petitioner was required to establish

prima facie eligibility for naturalization with a statement from

the Department of Homeland Security (“DHS”), which had

assumed the INS’s functions earlier in 2003. The BIA also

rejected Petitioner’s argument that the repeal of suspension of

deportation was impermissibly retroactive as applied to her. 

Petitioner filed a timely petition for a writ of habeas corpus

in the district court challenging her removal. The district court

transferred the petition to this court pursuant to the REAL ID

Act of 2005, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311.

We now treat Petitioner’s request for relief as a petition for

review of the BIA’s decision. See Rafaelano v. Wilson, 471

F.3d 1091, 1095-96 (9th Cir. 2006). We have jurisdiction to

review Petitioner’s constitutional claims and other questions

of law under 8 U.S.C. § 1252(a)(2)(D).

II. Standards of Review

We defer to an agency’s interpretation of its own regulation

when that interpretation is neither clearly erroneous nor

inconsistent with the regulation. See Singh-Bhathal v. INS,

170 F.3d 943, 945 (9th Cir. 1999). We review de novo claims

of due process violations in immigration proceedings. See

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We

also review de novo whether an application of IIRIRA is

impermissibly retroactive. See Sinotes-Cruz v. Gonzales, 468

F.3d 1190, 1194 (9th Cir. 2006). Because the BIA conducted

its own review of the evidence and law rather than simply

adopting the IJ’s decision, “our review is limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly

HERNANDEZ DE ANDERSON v. GONZALES 9479
adopted.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.

2000). 

III. Discussion

We review two holdings by the BIA. First, we review the

BIA’s holding that the IJ properly denied Petitioner’s request

for termination of removal proceedings under 8 C.F.R.

§ 1239.2(f). Second, we review its holding that IIRIRA’s

repeal of suspension of deportation is not impermissibly retroactive as applied to Petitioner.

A. Termination of Removal Proceedings

Petitioner contends that the BIA erred as a matter of law in

holding that she was ineligible for termination of removal

proceedings under 8 C.F.R. § 1239.2(f) because she had not

established prima facie eligibility for naturalization by obtaining an affirmative statement to that effect from the DHS. Petitioner makes two arguments in support of her contention.

First, she argues that, under a proper interpretation of

§ 1239.2(f), an IJ may determine that an alien in removal proceedings “has established prima facie eligibility for naturalization” even without a statement to that effect by the DHS.

Second, she argues that, if § 1239.2(f) is interpreted to require

that the DHS determine prima facie eligibility, the DHS has

a “conflict of interest” that violates Petitioner’s right to due

process of law. We address these arguments in turn. 

1. Establishing Prima Facie Eligibility for Naturalization

[1] Until 1990, federal district courts considered naturalization applications in the first instance. The Immigration Act of

1990 transferred that authority from the district courts to the

Attorney General. Pub. L. No. 101-649, § 401, 104 Stat. 4978,

5038; see De La Bellajaro v. Schiltgen, 378 F.3d 1042, 1045

(9th Cir. 2004). The Attorney General now has “sole authority

to naturalize persons as citizens of the United States.” 8

9480 HERNANDEZ DE ANDERSON v. GONZALES
U.S.C. § 1421(a). That authority, which the Attorney General

has delegated to the DHS, is limited by 8 U.S.C. § 1429,

which states that “no application for naturalization shall be

considered by the Attorney General if there is pending against

the applicant a removal proceeding.” We have stated that

“[t]he natural reading of [§ 1429] is that removal proceedings

and final removal orders are to take precedence over naturalization applications.” Perdomo-Padilla v. Ashcroft, 333 F.3d

964, 970 (9th Cir. 2003). 

Under certain circumstances, an IJ may terminate removal

proceedings in order to allow an alien’s naturalization application to go forward. The governing regulation is 8 C.F.R.

§ 1239.2(f), which provides:

An immigration judge may terminate removal proceedings to permit the alien to proceed to a final

hearing on a pending application or petition for naturalization when the alien has established prima facie

eligibility for naturalization and the matter involves

exceptionally appealing or humanitarian factors; in

every other case, the removal hearing shall be completed as promptly as possible notwithstanding the

pendency of an application for naturalization during

any state of the proceedings. 

In Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1975), the

BIA interpreted the “prima facie eligibility” requirement of 8

C.F.R. § 242.7(a), the predecessor to § 1239.2(f). The only

material difference between the two versions is that § 242.7(a)

used the pre-IIRIRA vocabulary, referring to “deportation

proceedings” rather than “removal proceedings.” Compare

Matter of Cruz, 15 I. & N. Dec. at 236 (quoting 8 C.F.R.

§ 242.7(a) (1975)), with 8 C.F.R. § 1239.2(f) (2007). The BIA

held in Matter of Cruz that aliens seeking termination of

deportation proceedings under § 242.7(a) could establish

prima facie eligibility for naturalization in two ways. They

could obtain either “an affirmative communication from the

HERNANDEZ DE ANDERSON v. GONZALES 9481
Service” or “a declaration of a [federal district] court that the

alien would be eligible for naturalization but for the pendency

of the deportation proceedings.” Matter of Cruz, 15 I. & N.

Dec. at 237. The BIA thus construed § 242.7(a) to require

aliens to have established prima facie eligibility through

methods outside the deportation proceedings. The BIA “decline[d] to entertain the question of whether an alien is eligible for naturalization” within the deportation proceedings

because “neither we nor immigration judges have authority

with respect to the naturalization of aliens.” Id. 

Following the transfer of authority over naturalization from

the federal district courts to the Attorney General in 1990,

several courts including our own have questioned the vitality

of Matter of Cruz. In particular, we have questioned whether

an alien still can obtain a declaration of prima facie eligibility

from a district court. De La Bellajaro, 378 F.3d at 1047; see

also Zayed v. United States, 368 F.3d 902, 907 & n.6 (6th Cir.

2004); Apokarina v. Ashcroft, 232 F. Supp. 2d 414, 417 (E.D.

Pa. 2002); Cuong Quang Le v. McNamee, No. 06-CV-49-BR,

2006 WL 3004524, at *4-5 (D. Or. Oct. 20, 2006) (concluding court had no jurisdiction to declare alien prima facie eligible for naturalization). 

[2] After we heard oral argument in Petitioner’s case, the

BIA reaffirmed its holding in Matter of Cruz that an alien

must establish prima facie eligibility outside the removal proceedings. In In re Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA

2007), the BIA held that, before seeking termination under

§ 1239.2(f), an alien must establish prima facie eligibility by

obtaining an affirmative statement from the DHS. The BIA

wrote that it was reaffirming this aspect of Matter of Cruz

“[b]ecause the same circumstances that were present in Matter of Cruz still exist today.” Id. at 106. That is, it remains true

that “neither the Board nor the Immigration Judges have jurisdiction to determine an alien’s eligibility for naturalization.”

Id. at 105-06. Therefore, the BIA concluded, “it is appropriate

for the Board and the Immigration Judges to require some

9482 HERNANDEZ DE ANDERSON v. GONZALES
form of affirmative communication from the DHS prior to terminating proceedings” under § 1239.2(f). Id. at 106.2

Petitioner does not challenge the validity of § 1239.2(f)

itself. Rather, she argues that the BIA’s interpretation of the

regulation is erroneous. She points out that the regulation

requires only that an applicant have “established prima facie

eligibility for naturalization,” and that it does not specify the

means by which such prima facie eligibility is to be “established.” Petitioner does not contend that the DHS cannot

make such a determination. Rather, she argues that an IJ and

the BIA should be able to do so as well. 

In reviewing an agency’s interpretation of its own regulation, “[o]ur task is not to decide which among several competing interpretations best serves the regulatory purpose.”

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).

Rather, we defer to an agency’s interpretation when that interpretation is neither “plainly erroneous [n]or inconsistent with

the regulation.” Id. (quotation marks omitted); see also SinghBhathal v. INS, 170 F.3d 943, 945 (9th Cir. 1999). 

[3] We hold that the BIA’s interpretation of § 1239.2(f) is

not plainly erroneous. The text of the regulation does not specifically authorize IJs to evaluate prima facie eligibility.

Rather, it requires only that an alien have “established” such

eligibility: An IJ “may terminate removal proceedings . . .

when the alien has established prima facie eligibility for natu2Without citing authority directly in support, the BIA asserts in Acosta

Hidalgo that district courts “no longer have authority to make decisions

as to an alien’s prima facie eligibility for citizenship.” See 24 I. & N. Dec.

at 105. Because the question is not squarely presented in this case, we

express no opinion concerning the BIA’s assertion. We note, however,

that district courts continue to have jurisdiction over at least some questions related to citizenship. See 8 U.S.C. §§ 1252(b)(5)(B), 1421(c),

1447(b); see also United States v. Hovsepian, 359 F.3d 1144, 1159-64 (9th

Cir. 2004) (en banc) (discussing district courts’ jurisdiction over naturalization applications). 

HERNANDEZ DE ANDERSON v. GONZALES 9483
ralization and the matter involves exceptionally appealing or

humanitarian factors.” 8 C.F.R. § 1239.2(f). The juxtaposition

of the present perfect tense in “has established” and the present tense in “and the matter involves” arguably implies that an

alien shall have established eligibility outside the removal

proceeding being conducted by the IJ. Thus, the BIA’s interpretation requiring an alien to have “established” eligibility

prior to, and outside, the proceedings with a statement by the

governmental authority responsible for considering naturalization applications is not a plainly erroneous interpretation of

the regulation. 

[4] Nor is the BIA’s interpretation of § 1239.2(f) in Cruz

and Acosta Hidalgo inconsistent with the purpose of the regulation. Petitioner argues that requiring aliens to obtain statements from the DHS in order to establish prima facie

eligibility for naturalization is inconsistent with § 1239.2(f)

because, by refusing to provide such statements, the DHS can

prevent IJs from exercising their discretion to terminate

removal proceedings. Such veto power is not inconsistent

with § 1239.2(f), however. The plain purpose of the regulation is to allow the IJ discretion to terminate proceedings in

cases involving “exceptionally appealing or humanitarian factors,” so that such aliens can apply for naturalization. 8 C.F.R.

§ 1239.2(f). If the DHS has already declined to state that an

alien is prima facie eligible for naturalization, terminating the

removal proceedings under § 1239.2(f) is likely to produce

unwarranted delay. In such circumstances, the DHS is virtually certain to deny naturalization, and then will be required

to recommence removal proceedings after that denial. Such

inefficiency would be inconsistent with § 1239.2(f), which

states that, “in every other case, the removal hearing shall be

completed as promptly as possible.” (Emphasis added.) 

2. Due Process

Petitioner’s second argument is that the DHS has a “conflict of interest” that violates due process. She contends that

9484 HERNANDEZ DE ANDERSON v. GONZALES
a conflict arises where a single agency simultaneously performs the following roles: (1) commencing and prosecuting

removal proceedings; (2) deciding whether to provide an

affirmative statement that an alien is prima facie eligible for

naturalization in order to permit termination of the removal

proceedings; and (3) denying the alien’s naturalization application based on the pendency of removal proceedings. Petitioner has cited no case law in support of her argument. 

[5] In essence, Petitioner is arguing that the Attorney General and, derivatively, the DHS have been given too much

authority over naturalization and removal decisions. Given

Congress’s “ ‘plenary’ ” power over immigration, and given

the abstract form in which Petitioner’s argument is presented

to us, we cannot conclude that assigning to the DHS the various roles just described violates due process. United States v.

Hernandez-Guerrero, 147 F.3d 1075, 1076 (9th Cir. 1998)

(quoting Kleindienst v. Mandel, 408 U.S. 753, 765 (1972)).

B. Suspension of Deportation and Retroactivity

In Landgraf v. USI Film Products, 511 U.S. 244, 265

(1994), the Supreme Court reaffirmed that “[e]lementary considerations of fairness dictate that individuals should have an

opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly

disrupted.” Accordingly, “ ‘the legal effect of conduct should

ordinarily be assessed under the law that existed when the

conduct took place,’ ” and “ ‘congressional enactments . . .

will not be construed to have retroactive effect unless their

language requires this result.’ ” Id. at 264-65 (quoting Kaiser

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855

(1990) (Scalia, J., concurring); Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 208 (1988)). 

The Supreme Court has set out a two-step analysis to determine whether a statute has an impermissible retroactive

effect. We begin by determining whether “ ‘Congress has

HERNANDEZ DE ANDERSON v. GONZALES 9485
expressly prescribed’ ” that the statute should apply retroactively. Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2428

(2006) (quoting Landgraf, 511 U.S. at 280). If there is such

a clear indication from Congress, our analysis under Landgraf

ends because “it is beyond dispute that, within constitutional

limits, Congress has the power to enact laws with retrospective effect.” INS v. St. Cyr, 533 U.S. 289, 316 (2001). If Congress has not clearly indicated its intent to apply a statute to

prior conduct, however, we presume that the statute applies

only prospectively. Landgraf, 511 U.S. at 280. Using that presumption, we then examine the statute to determine if its

application impermissibly “impose[s] some burden on the

basis of an act or event preceding the statute’s enactment.”

Fernandez-Vargas, 126 S. Ct. at 2428. 

In deciding Petitioner’s retroactivity claim, we may readily

dispose of Landgraf’s first step. We have already held that

Congress did not clearly indicate that IIRIRA’s repeal of suspension of deportation should operate retroactively. JimenezAngeles v. Ashcroft, 291 F.3d 594, 601 (9th Cir. 2002). Thus,

after summarizing Petitioner’s conduct in relation to the law

as it stood prior to IIRIRA, we move to the second step of the

Landgraf analysis, namely whether IIRIRA has an impermissible retroactive effect as applied to Petitioner.

1. Petitioner’s Conduct

As recounted in greater detail above, Petitioner was granted

lawful permanent resident status in 1973, thirty-four years

ago, based on her marriage to a United States citizen. In 1981,

Petitioner was convicted under California law of attempted

voluntary manslaughter and discharge of a firearm. She was

released from prison in 1985. Petitioner applied for naturalization in 1995. When she applied for naturalization, Petitioner was deportable based on her 1981 convictions. See 8

U.S.C. § 1251(a)(2) (1995). 

By applying for naturalization, Petitioner affirmatively

brought herself and her criminal convictions to the attention

9486 HERNANDEZ DE ANDERSON v. GONZALES
of the INS. Confronted with Petitioner’s application, the INS

might simply have granted or denied the application. It also

was possible, however, that the INS would not only deny Petitioner’s application, but also decide to begin deportation proceedings against her. 

Petitioner had been potentially eligible for naturalization as

early as 1990, five years before the date of her application. As

the law then stood, a lawful permanent resident was eligible

for naturalization after five years of continuous residence if,

during that five-year period, the applicant could demonstrate

that she “ha[d] been and still [was] a person of good moral

character, attached to the principles of the Constitution of the

United States, and well disposed to the good order and happiness of the United States.” 8 U.S.C. § 1427(a) (1990); see

also 8 C.F.R. § 316.2(a) (1995). Good moral character could

not be established during periods of incarceration of more

than six months. 8 U.S.C. § 1101(f)(7) (1990). Accordingly,

Petitioner potentially could have satisfied the five-year moral

character requirement for naturalization in 1990, five years

after her release from prison in 1985. In assessing moral character, the INS was “not limited to reviewing the applicant’s

conduct during the five years immediately preceding the filing

of the application.” 8 U.S.C. § 1427(e) (1990). However, Petitioner’s convictions did not categorically preclude a finding of

good moral character. See id. § 1101(f); Lopez-Castellanos,

437 F.3d at 851 & n.3. 

Because she did not apply for naturalization until 1995, five

years after she first became potentially eligible, Petitioner had

also, by the time of her application, become eligible to apply

for suspension of deportation in the event that the INS, in

response to her naturalization application, decided to commence deportation proceedings. Under INA § 244(a)(2), 8

U.S.C. § 1254(a)(2) (repealed 1997), Petitioner was eligible to

apply for suspension of deportation if she could demonstrate

ten years of continuous physical presence and good moral

character. Because she could not establish good moral characHERNANDEZ DE ANDERSON v. GONZALES 9487
ter during her incarceration, Petitioner could not satisfy the

ten-year character requirement until 1995, ten years after her

release from prison in 1985. See 8 U.S.C. § 1101(f)(7) (1990).3

[6] On September 30, 1996, more than a year after Petitioner applied for naturalization, IIRIRA was enacted. Its

effective date was six months later, on April 1, 1997. IIRIRA

repealed suspension of deportation and replaced it with cancellation of removal, a form of relief not available to lawful

permanent residents convicted of an aggravated felony. See 8

U.S.C. § 1229b(a)(3). Because Petitioner’s 1981 attempted

voluntary manslaughter conviction qualifies as an aggravated

felony, she is not eligible for cancellation of removal. See 8

U.S.C. § 1101(a)(43)(F), (U); United States v. Maria3

In a letter filed after oral argument in this case, the government contends that INA § 244(a)(2) requires that the ten-year continuous period of

good moral character begin immediately after the commission of the

crime. Because conduct during a period of incarceration longer than six

months does not count toward a period of good moral conduct, the effect

of the government’s interpretation of the statute would be that no person

incarcerated for a period longer than six months could ever establish good

moral character in order to be eligible for suspension of deportation under

INA § 244(a)(2). The government has cited no case to us in which either

the BIA or any court has so held. 

A BIA opinion, not cited by the government, is inconsistent with the

government’s position. In Matter of Wong, 12 I. & N. Dec. 721 (BIA

1968), the BIA counted the ten-year continuous period of good moral

character backward from the date of application for suspension of deportation, rather than forward from the date of the crime. Id. at 724-25 (“The

evidence of record affirmatively establishes that the respondent has been

a person of good moral character for at least the ten years preceding his

application for suspension of deportation.”). To the same effect is a later

Seventh Circuit opinion, Rassano v. INS, 492 F.2d 220 (7th Cir. 1974),

also not cited by the government. See id. at 225 (“Petitioner had the burden of establishing that he was and now is a person of good moral character during the ten-year period as required in Section 1254(a)(2) . . . . [T]he

Service concedes that this section is none too clear as to when the ten-year

period is to begin. It concluded that Congress meant the period immediately preceding the date of the suspension application . . . .”). We therefore

conclude that the government’s reading of § 244(a)(2) is incorrect. 

9488 HERNANDEZ DE ANDERSON v. GONZALES
Gonzalez, 268 F.3d 664, 669 (9th Cir. 2001). Thus, if

IIRIRA’s repeal of suspension of deportation applies to Petitioner, she has lost the right to seek suspension of deportation

— a right that she had when she applied for naturalization in

1995. 

2. Analysis

At Landgraf’s second step, we apply a presumption against

the statute’s retroactive application. “The aim of the presumption is to avoid unnecessary post hoc changes to legal rules on

which parties relied in shaping their primary conduct.” Austria v. Altmann, 541 U.S. 677, 696 (2004). The presumption

protects the “settled expectations” of individuals by giving

them “an opportunity to know what the law is and to conform

their conduct accordingly.” Landgraf, 511 U.S. at 265. 

The Court acknowledged in Landgraf that “deciding when

a statute operates ‘retroactively’ is not always a simple or

mechanical task.” Id. at 268. 

[7] Rather than providing a formula to apply at Landgraf’s

second step, the Court has repeatedly instructed courts to

make “a commonsense, functional judgment about whether

the new provision attaches new legal consequences to events

completed before its enactment.” St. Cyr, 533 U.S. at 321

(internal quotation marks omitted) (quoting Martin v. Hadix,

527 U.S. 343, 357-58 (1999) (quoting Landgraf, 511 U.S. at

270)). This judgment “should be informed and guided by

familiar considerations of fair notice, reasonable reliance, and

settled expectations.” Id. (internal quotation marks omitted)

(quoting Martin, 527 U.S. at 358 (quoting Landgraf, 511 U.S.

at 270)). Landgraf is frequently cited for the Court’s paraphrase of Justice Story: A provision operates retroactively if

it “would impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose new

duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280; see also id. at 269. However, this list

HERNANDEZ DE ANDERSON v. GONZALES 9489
of retroactive effects “merely describe[s] . . . sufficient, rather

than . . . necessary, condition[s] for invoking the presumption

against retroactivity.” Hughes Aircraft Co. v. United States ex

rel. Schumer, 520 U.S. 939, 947 (1997) (emphases in original). 

The Court has twice considered aliens’ claims that

IIRIRA’s repeal of relief from deportation was impermissibly

retroactive as applied to them. In St. Cyr, the Court held that

IIRIRA’s repeal of waiver of deportation under INA § 212(c)

is impermissibly retroactive as applied to aliens who pled

guilty pursuant to plea agreements before the enactment of

IIRIRA. 533 U.S. at 325-26. The Court wrote, “There can be

little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware

of the immigration consequences of their convictions.” Id. at

322. The Court found the “potential for unfairness . . . significant and manifest” in the retroactive denial of defendants’ eligibility for § 212(c) relief after the defendants gave up their

right to go to trial based on the opportunity to apply for a

waiver of deportation. Id. at 323. The Court wrote that

“[t]here is a clear difference, for the purposes of retroactivity

analysis, between facing possible deportation and facing certain deportation.” Id. at 325 (citing Hughes Aircraft, 520 U.S.

at 949; Lindsey v. Washington, 301 U.S. 397, 401 (1937)). 

In the Court’s second IIRIRA case, Fernandez-Vargas, the

petitioner was an illegal reentrant whose United States citizen

wife applied on his behalf for lawful permanent resident status in 2001, after IIRIRA had rendered him ineligible for

adjustment of status. 126 S. Ct. at 2427. The Court held that

IIRIRA was not impermissibly retroactive as applied to him

because the “predicate action” to his removal was his “indefinitely continuing violation” in remaining in the country as an

illegal reentrant since 1982, “not a past act that he [was] helpless to undo.” Id. at 2432. IIRIRA did not impermissibly

impose a “burden on the basis of an act or event preceding the

statute’s enactment” because a statute has an impermissible

9490 HERNANDEZ DE ANDERSON v. GONZALES
retroactive effect only when applied to acts or events completed before the statute’s enactment. Id. at 2428. 

St. Cyr has produced considerable disagreement among the

courts of appeal concerning whether “reasonable reliance” on

pre-IIRIRA relief from deportation is a required element of a

Landgraf claim to that relief and, if some form of reliance is

required, what form it must take. Compare Olatunji v. Ashcroft, 387 F.3d 383, 393-94 (4th Cir. 2004) (holding that

while “the presumption against retroactivity serves reliance

interests, . . . reliance is not a requirement of retroactivity”

because “the historical presumption against retroactive application of statutes did not require reliance” and “[n]either

Landgraf nor subsequent Supreme Court authority imposes

any such requirement” (emphases in original)), and Atkinson

v. Att’y Gen., 479 F.3d 222, 227-29 (3d Cir. 2007) (holding

same), with Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir.

2006) (requiring a showing of “objective reliance,” i.e., that

reliance would have been reasonable under the circumstances), Wilson v. Gonzales, 471 F.3d 111, 122 (2d Cir.

2006) (requiring evidence of reliance in the form of “categorical” “objective evidence that aliens who engaged in a course

of action . . . ‘almost certainly’ relied reasonably on the continued availability of . . . relief” or in the form of an “individualized showing” of actual reliance), and Carranza-de Salinas

v. Gonzales, 477 F.3d 200, 205 (5th Cir. 2007) (following

Second Circuit case pre-dating Wilson in requiring “actual,

subjective reliance on the pre-IIRIRA state of the law” in the

sense that the applicant for relief “detrimentally changed his

position in reliance on continued eligibility” or “actively

engaged in conduct that reflect[ed] an intention to preserve

[his] eligibility” (alterations in original) (internal quotation

marks omitted) (quoting Hernandez-Castillo v. Moore, 436

F.3d 516, 519 (5th Cir. 2006) (quoting Rankine v. Reno, 319

F.3d 93, 99-100 (2d Cir. 2003))); see also Thaqi v. Jenifer,

377 F.3d 500, 504 n.2 (6th Cir. 2004) (noting that “under St.

Cyr, the [alien] need not demonstrate actual reliance upon the

HERNANDEZ DE ANDERSON v. GONZALES 9491
immigration laws in order to demonstrate an impermissible

retroactive effect”). 

[8] Expressly disapproving the conclusion of the Third and

Fourth Circuits, this court has held that aliens claiming that

IIRIRA’s repeal of relief from deportation is impermissibly

retroactive as applied to them must demonstrate reasonable

reliance on pre-IIRIRA law. Kelava v. Gonzales, 434 F.3d

1120, 1124-25 & n.7 (9th Cir.) (as amended), cert. denied,

127 S. Ct. 43 (2006); see also Saravia-Paguada, No. 05-

73098, 2007 WL 1462240, at *9 (9th Cir. May 21, 2007)

(rejecting the petitioner’s argument that this court’s “emphasis on an alien’s reasonable reliance on a prior law is inconsistent with Supreme Court precedent”). We have formulated

this rule in the negative: Aliens making a Landgraf retroactivity argument cannot prevail if they “ ‘cannot plausibly claim

that they would have acted . . . differently if they had known’

about the elimination of [the] relief.” Kelava, 434 F.3d at

1124 (quoting Armendariz-Montoya v. Sonchik, 291 F.3d

1116, 1121-22 (9th Cir. 2002)). Because our cases have not

elaborated on how a petitioner may “plausibly claim” that she

would have acted differently had she known about the

impending change in the law, we turn for guidance to the reliance interests the Supreme Court has recognized under Landgraf. 

[9] Where reliance on prior law has figured prominently in

the Court’s analysis of a Landgraf claim, the Court has considered whether reliance would have been objectively reasonable under the party’s circumstances without asking whether

the particular party did, in fact, act in reliance on the law.

First, in Martin, the Court held that limits on attorneys’

hourly fee rates imposed by the Prison Litigation Reform Act

(“PLRA”) did not apply to work performed before the passage of the PLRA. 527 U.S. at 347. The Court’s discussion of

the reliance interest was brief: “Respondents’ counsel performed a specific task — monitoring petitioners’ compliance

with the court orders — and they were told that they would

9492 HERNANDEZ DE ANDERSON v. GONZALES
be compensated at a rate of $150 per hour. Thus, when the

lawyers provided these postjudgment monitoring services

before the enactment of the PLRA, they worked in reasonable

reliance on this fee schedule.” Id. at 358. Deeming reliance on

the fee schedule under such circumstances reasonable, the

Court did not consider whether the attorneys actually did rely

on the rate in the sense that they would not have performed

the work had they known that they would be paid a lower

rate. 

Second, in St. Cyr, the Court analyzed St. Cyr’s reasonable

reliance on relief under former § 212(c) by reference to criminal aliens’ circumstances generally, rather than evidence that

St. Cyr himself actually relied on the availability of the relief

in choosing to plead guilty. The Court reached this conclusion

by finding that “as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware

of the immigration consequences of their convictions,” and

that “preserving the possibility of such relief would have been

one of the principal benefits sought by defendants deciding

whether to accept a plea offer or instead to proceed to trial.”

533 U.S. at 322-23 (emphases added). The Court held that the

repeal of the relief was impermissibly retroactive as applied

to all aliens in St. Cyr’s position rather than only to St. Cyr

himself: “We therefore hold that § 212(c) relief remains available for aliens, like respondent, 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. Thus, St. Cyr is inconsistent with our pre-St. Cyr dictum

that a criminal defendant would have to make “a specific factual showing that a plea was entered in reliance on the availability of discretionary waiver under § 212(c)” in order to

establish a Landgraf claim to the relief. Magana-Pizano v.

INS, 200 F.3d 603, 613 (9th Cir. 1999). 

[10] As for the form reliance on prior law may take, the

Court in St. Cyr held that there was reliance when defendants

HERNANDEZ DE ANDERSON v. GONZALES 9493
entered plea agreements based in part on their then-existing

right to apply for § 212(c) relief. However, Landgraf and St.

Cyr make clear that entering into a quid pro quo exchange is

not the sole form of reliance on prior law that can support a

retroactivity claim. As an example of impermissible retroactivity affecting a right other than a contractual or property

right, the Court in Landgraf cited Chew Heong v. United

States, 112 U.S. 536 (1884), which held that “a provision of

the ‘Chinese Restriction Act’ of 1882 barring Chinese laborers from reentering the United States without a certificate prepared when they exited this country . . . . did not bar the

reentry of a laborer who had left the United States before the

certification requirement was promulgated.” Landgraf, 511

U.S. at 271. The Court in Chew Heong found the application

of the Chinese Restriction Act impermissibly retroactive in

part because of the laborers’ justified reliance on prior law in

departing the country: “[T]he plaintiff in error, having left

before any certificate was permitted to be issued, cannot be

required to produce one before re-entering, because, having

resided here [under the prior law], he was clearly entitled . . .

to go from and return to the United States of his own free will

— a privilege that would be destroyed if its enjoyment

depended upon a condition impossible to be performed.” 112

U.S. at 560. The Court drew on Chew Heong again in St. Cyr,

analogizing criminal aliens’ reliance on § 212(c) when plea

bargaining to the Chinese nationals’ “reliance on the state of

the law when they departed.” 533 U.S. at 325 n.55. 

We find persuasive the conclusion drawn from these cases

by the Tenth Circuit. Hem, 458 F.3d at 1197. Summarizing,

that court gave three reasons for its holding that “objectively

reasonable reliance on prior law is sufficient to sustain a retroactivity claim”:

First, [an objective reliance] rule is more directly

tied to the basic aim of retroactivity analysis: in

determining whether it is appropriate to presume

Congress concluded that the benefits of a new law

9494 HERNANDEZ DE ANDERSON v. GONZALES
did not warrant disturbance of interests existing

under prior law, it makes sense to look at the objective group-based interests that Congress could practically have assessed ex ante. Second, this rule is

consistent with the Supreme Court’s analyses in

Landgraf and its progeny, none of which required

actual reliance. Third, and most immediately pertinent here, the objective approach is consistent with

the actual holding in St. Cyr — the Court’s most

reliance-focused decision — which precluded retroactive application of IIRIRA’s elimination of

§ 212(c) eligibility to all aliens who reasonably

could have relied on prior law when pleading guilty,

rather than to just those aliens who actually did so

rely. 

Id. 

As the Tenth Circuit recognized, id. at 1191, two members

of a panel of this court had already come to the conclusion

that the appropriate reliance test is one of “objective reliance.”

In Garcia-Ramirez v. Gonzales, 423 F.3d 935 (9th Cir. 2005)

(per curiam), we held that our prior circuit precedent compelled the conclusion at Landgraf’s first step that Congress

intended the IIRIRA provision at issue to apply retroactively;

therefore, we did not reach Landgraf’s second step. Id. at 940.

Two members of the panel wrote separately to state that, had

they not been compelled by circuit precedent to hold that the

petitioner’s claim failed at the first step, they would have

reached the second step and would have held that the statute’s

application to the petitioner was impermissibly retroactive. Id.

at 941 (Fisher, J., concurring). 

Regarding the reliance interest necessary at Landgraf’s second step in an IIRIRA case, the two panel members wrote:

As in St. Cyr, . . . a finding of impermissible retroactivity here would not depend on Garcia-Ramirez

HERNANDEZ DE ANDERSON v. GONZALES 9495
showing that she actually, subjectively relied on 8

U.S.C. § 1254(b)(2) when she departed the United

States. See St. Cyr, 533 U.S. at 322-25 (presuming

a quid pro quo without proof of actual reliance) . . . .

We would not dispense with the requirement of

reasonable reliance. We simply find it to be objectively reasonable that an alien like Garcia-Ramirez,

contemplating a trip outside the United States in

1989, could reasonably rely on the then-applicable

legal standard not later being converted to one that

automatically restarted the clock on her continuous

presence because she exceeded the 90-day limit —

a limit she could have stayed within had that been

the rule at the time. 

Id. at 946 (citations omitted); see also Saravia-Paguada, 2007

WL 1462240, at *7 (reasoning that reliance in the form of

criminal conduct is “per se unreasonable”). 

[11] We now hold that individuals demonstrate reasonable

reliance on pre-IIRIRA law and “ ‘plausibly claim that they

would have acted . . . differently if they had known’ about the

elimination of [the] relief” if it would have been objectively

reasonable under the circumstances to rely on the law at the

time. Kelava, 434 F.3d at 1124 (quoting ArmendarizMontoya, 291 F.3d at 1121). Petitioner argues before this

court, as she argued before the BIA and the IJ, that the “relevant past event” to which IIRIRA attached new legal consequences is her application for naturalization in 1995.

Landgraf, 511 U.S. at 270. She argues that, when she applied

for naturalization in 1995, she had a settled expectation in the

existence of suspension of deportation and “implicitly rel-

[ied]” on her eligibility for that relief. 

In making our “commonsense, functional judgment” about

whether IIRIRA’s repeal of suspension of deportation is

impermissibly retroactive as applied to Petitioner, we assume

9496 HERNANDEZ DE ANDERSON v. GONZALES
that a lawful permanent resident applying for naturalization is,

like an alien engaged in plea bargaining, “acutely aware of the

immigration consequences” of her action. St. Cyr, 533 U.S. at

322. In Petitioner’s case, those immigration consequences

included placing at risk the life she had established as a lawful

permanent resident in the United States. At the time of her

application in 1995, Petitioner had been living in the United

States as a lawful permanent resident for approximately

twenty-two years. Since her release from prison in early 1985,

she had worked as a caretaker for ill and elderly people,

become a longstanding member of a church, and, in 1992,

purchased a house. During this decade, she had not had any

contact with immigration authorities. 

Nevertheless, in 1995, Petitioner brought herself — and her

criminal convictions — to the INS’s attention by applying for

naturalization. In so acting, she incurred the risk that the INS

would choose to initiate deportation proceedings against her

rather than grant her naturalization application. Petitioner’s

application for naturalization was a “completed” act for the

purposes of retroactivity analysis. Having brought her convictions to the INS’s attention, Petitioner could not subsequently

withdraw them from scrutiny. Once she submitted her application, “there was no question of undoing” what she had

done. Fernandez-Vargas, 126 S. Ct. at 2432. She had rung the

bell; she could not unring it. 

[12] As in St. Cyr, Petitioner acted at a time when the risk

of deportation was lessened by the possibility of relief from

deportation under the law as it then stood. In Petitioner’s case,

that relief was suspension of deportation under INA

§ 244(a)(2), 8 U.S.C. § 1254(a)(2) (repealed 1997). Petitioner

first became eligible to apply for naturalization in 1990, when

five years had passed since her release from prison in 1985.

However, she did not apply for naturalization until 1995, by

which time she had become eligible for suspension of deportation. Although Petitioner could not have been certain that

she would be granted suspension of deportation if her naturalHERNANDEZ DE ANDERSON v. GONZALES 9497
ization application were denied and deportation proceedings

were commenced, “[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation.” St. Cyr, 533 U.S. at

325. 

[13] A “commonsense, functional judgment” leads us to

conclude that a lawful permanent resident in Petitioner’s position in 1995 would reasonably have relied on the existence of

relief from deportation in applying for naturalization. A reasonable person in Petitioner’s circumstances, “acutely aware

of the immigration consequences” of her actions, would have

known that waiting to apply for naturalization until ten years

had elapsed after her release from prison — that is, waiting

an additional five years after becoming eligible for citizenship

— would insure that suspension of deportation would be

available in the event the INS sought to deport her. In Petitioner’s circumstances, it was objectively reasonable to wait

the additional five years and to apply for naturalization only

when that time had elapsed. The fact that Petitioner waited

those five years reinforces our conclusion that Petitioner’s

submitting her application disclosing the criminal convictions

for which she was deportable was an act of reasonable reliance on the availability of suspension of deportation. She can

thus “ ‘plausibly claim that [she] would have acted . . . differently if [she] had known’ about the elimination of

§ [244(a)(2)] relief,” for which she had become eligible by the

time she submitted her naturalization application. Kelava, 434

F.3d at 1124 (quoting Armendariz-Montoya, 291 F.3d at

1121). 

In so concluding, we note that Petitioner’s claim does not

suffer from the defects we have previously identified in other

aliens’ arguments against retroactive application of IIRIRA

under step two of Landgraf. First, because of Petitioner’s

objectively reasonable reliance on the availability of suspension of deportation, her claim is unlike the claims we have

rejected for lack of objectively reasonable reliance. See, e.g.,

9498 HERNANDEZ DE ANDERSON v. GONZALES
Saravia-Paguada, 2007 WL 1462240, at *8-10 (no reasonable reliance in committing the crime for which petitioner was

removable); Kelava, 434 F.3d at 1125 (no reasonable reliance

in engaging in terrorist activity); Armendariz-Montoya, 291

F.3d at 1121-22 (no reasonable reliance in committing crime

or proceeding to trial rather than entering guilty plea). 

[14] Second, Petitioner did not have fair notice that a

change in the law would deprive her of the right to apply for

suspension of deportation if the INS initiated deportation proceedings against her in response to her application for naturalization. Petitioner applied for naturalization on August 2,

1995, more than a year before the passage of IIRIRA, and an

additional six months before IIRIRA took effect. Cf. St. Cyr,

533 U.S. at 314 (noting that St. Cyr entered his plea agreement in March 1996). Petitioner is thus not among those

aliens who, following IIRIRA’s passage and with notice of its

effective date, applied for various forms of relief from deportation in the hope of taking advantage of certain more favorable pre-IIRIRA provisions before April 1, 1997. See, e.g.,

Ramirez-Zavala v. Ashcroft, 336 F.3d 872, 873-74 (9th Cir.

2003) (alien’s action after IIRIRA’s passage but before its

effective date); Vasquez-Zavala v. Ashcroft, 324 F.3d 1105,

1106 (9th Cir. 2003) (same); Jimenez-Angeles, 291 F.3d at

597 (same). Unlike those aliens, Petitioner had no notice, at

the time she acted, that suspension of deportation would be

repealed, thus leaving her without any possible relief from

deportation. 

Third, unlike aliens who were present illegally in the

United States at the time of their ostensible “settled expectation,” Petitioner was a lawful permanent resident at the time

of her application and had held that status for twenty-two

years. Even where there are grounds to seek deportation or

removal, a lawful permanent resident is lawfully present in

the United States until a final deportation or removal order is

entered. See 8 C.F.R. § 1.1(p); United States v. Reyna-Tapia,

328 F.3d 1114, 1117 (9th Cir. 2003) (en banc). In 1995, the

HERNANDEZ DE ANDERSON v. GONZALES 9499
INS had not sought to deport Petitioner for her criminal convictions; nor had the INS even contacted her. Petitioner’s naturalization application was not a plea for mercy by someone

illegally present in this country. Rather, it was an application

for citizenship submitted by a lawful permanent resident who

could reasonably rely on the law in existence at the time providing that she was eligible to be considered for both naturalization and suspension of deportation. Compare St. Cyr, 533

U.S. at 293 (lawful permanent resident), with RamirezZavala, 336 F.3d at 873-74 (illegal alien), Vasquez-Zavala,

324 F.3d at 1106 (same), and Jimenez-Angeles, 291 F.3d at

602 (same). 

Finally, at the time of her application in 1995, Petitioner

was eligible to apply for suspension of deportation. She had

accrued the necessary ten years of continuous presence and

had reason to believe that she could demonstrate good moral

character throughout that period as required for relief under

former INA § 244(a)(2). Petitioner is thus unlike those aliens

whose Landgraf claims failed because they were never eligible for relief before the passage of IIRIRA, and thus had no

claim to a pre-IIRIRA reliance interest in the relief. See, e.g.,

Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1327-28 (9th

Cir. 2006) (finding no impermissible retroactive effect in the

denial of pre-IIRIRA relief because the petitioner had not

been in the United States long enough to qualify for the relief

at the time of IIRIRA’s passage). 

[15] We therefore hold that applying IIRIRA’s repeal of

suspension of deportation to Petitioner “would have a retroactive consequence in the disfavored sense of ‘affecting substantive rights, liabilities, or duties [on the basis of] conduct

arising before [its] enactment.’ ” Fernandez-Vargas, 126

S. Ct. at 2428 (quoting Landgraf, 511 U.S. at 278 (alterations

in Fernandez-Vargas)). To deny Petitioner the opportunity to

apply for suspension of deportation would be inconsistent

with the “[e]lementary considerations of fairness dictat[ing]

that individuals should have an opportunity to know what the

9500 HERNANDEZ DE ANDERSON v. GONZALES
law is and to conform their conduct accordingly.” Landgraf,

511 U.S. at 265.

Conclusion

[16] The BIA did not err in affirming the IJ’s refusal to terminate Petitioner’s removal proceedings under 8 U.S.C.

§ 1239.2(f). However, the BIA erred in holding that IIRIRA’s

repeal of suspension of deportation was not impermissibly

retroactive as applied to Petitioner. We therefore grant the

petition and remand to the BIA for further proceedings consistent with this opinion. 

Petition GRANTED and REMANDED.

TALLMAN, Circuit Judge, concurring in part and dissenting

in part: 

Today the majority untethers our retroactivity jurisprudence

in the criminal alien context from the mooring the Supreme

Court established in INS v. St. Cyr, 533 U.S. 289 (2001).

Because Congress has chosen to reduce immigration benefits

available to aliens convicted of aggravated felonies, and the

Supreme Court has given us the analytical guidance to evaluate the constitutional claims of those like petitioner who were

convicted by juries, I would hold that Hernandez de Anderson

has failed to establish a cognizable reliance interest sufficient

to invalidate retroactive application of IIRIRA’s cancellation

of removal provision. I respectfully dissent.1

1

I concur in the majority’s conclusion that the BIA did not err in affirming the IJ’s refusal to terminate Hernandez de Anderson’s removal proceedings under 8 C.F.R. § 1239.2(f). 

HERNANDEZ DE ANDERSON v. GONZALES 9501
I

By shifting the focus away from the quid pro quo exchange

inherent in a plea bargain—which was the lynchpin of the

Supreme Court’s analysis in St. Cyr—the majority crafts a

holding that conflicts with our retroactivity jurisprudence in

the criminal alien context. We have never before invalidated

the retroactive application of IIRIRA where an alien made the

conscious decision to proceed to trial. Indeed, where other circuits have been content to look elsewhere to establish reasonable reliance, our court has made clear that the retroactivity

analysis, at least in the criminal alien context, begins and ends

with whether the alien accepted a guilty plea in reliance on

then-existing discretionary relief available at the time the

decision to plead guilty was made. 

In Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121

(9th Cir. 2002), we held that an alien who chooses to go to

trial “cannot plausibly claim that [he] would have acted any

differently if [he] had known” about the elimination of

§ 212(c) relief. “Outside of the plea bargain context, however,

we have declined to invalidate retroactive elimination of

§ 212(c) relief.” Saravia-Paguada v. Gonzales, 488 F.3d

1122, 1131 (9th Cir. 2007). Indeed, in Saravia-Paguada, we

made clear that Armendariz-Montoya “reaffirmed a narrow

reading of St. Cyr and excluded categorically claims for

§ 212(c) relief outside the guilty plea context.” Id. (emphasis

added); see also Kelava v. Gonzales, 434 F.3d 1120, 1122-24

(9th Cir. 2006) (affirming Armendariz-Montoya’s reasoning

and emphasizing that the St. Cyr Court was “concerned that

the alien had detrimentally relied on the availability of

§ 212(c) relief in entering the plea, giving rise to ‘settled

expectations’ that would be disrupted by the retroactive application of IIRIRA § 304(b)” (citing INS v. St. Cyr, 533 U.S.

289, 323-24 (2001))).2

2That this case involves suspension of deportation under § 244(a)(2), as

opposed to waiver of inadmissibility under § 212(c), makes no difference.

9502 HERNANDEZ DE ANDERSON v. GONZALES
Thus, to the extent that the opinion relies on extracircuit

case law for a post-jury-conviction retroactivity analysis, it

conflicts with our court’s precedent. Moreover, it makes no

difference that Hernandez de Anderson is a lawful permanent

resident—as opposed to an alien residing illegally in the

United States. Our language in Armendariz-Montoya and

Saravia-Paguada was absolute; we carved out no exceptions

based on the status of the particular alien. We stated simply

that if an alien proceeded to trial, the retroactivity inquiry was

at an end. In this case, Hernandez de Anderson took her

chances at trial to defend against a murder charge, and she lost.3

Congress has declared that suspension of deportation is no

longer available to this class of aliens. I would go no further.

II

Even if our precedents in this area of law permitted invalidation of IIRIRA retroactivity outside the plea bargain context, I would decline to do so on the grounds relied upon by

the majority. The majority concludes that Hernandez de

Anderson has established reasonable reliance sufficient to

invalidate the retroactive application of IIRIRA’s cancellation

The retroactivity principles are the same. Each is a form of discretionary

relief altered by the enactment of IIRIRA and AEDPA. The majority

would be hard pressed to find a meaningful distinction without undermining its own analysis, which relies heavily on multiple § 212(c) cases. 

3The California Court of Appeal affirmed Hernandez de Anderson’s

conviction on appeal. In Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006)

—a case cited by the majority to support its conclusion that an alien need

only establish objective reliance—the Tenth Circuit invalidated retroactive

application of IIRIRA to the class of “[a]liens who gave up their right to

appeal their aggravated felony conviction when a successful appeal could

have deprived them of § 212(c) eligibility.” Id. at 1199. Because Hernandez de Anderson actually appealed her conviction, the Hem class is of

no assistance to her. Indeed, in its haste to declare—for the first time in

this circuit—that an alien need not show subjective reliance, the majority

puts the cart before the horse. One must first establish a reasonable reliance interest before addressing whether that reliance must be subjective or

objective. 

HERNANDEZ DE ANDERSON v. GONZALES 9503
of removal provision based on (1) her decision to wait five

years before filing her naturalization application and (2) the

fact that at the time of her filing she was eligible for suspension of deportation under pre-IIRIRA law. Op. at 9497-9501.

Because neither rationale, on its own, suffices to establish reasonable reliance under our case law, cobbling them together

does the majority no greater good. I address each ground in

turn.

A

The majority makes much of Hernandez de Anderson’s

decision to wait to file her naturalization application until

1995 despite the fact that she was eligible for naturalization

as early as 1990. The problem with this reliance argument is

that at the time that Hernandez de Anderson purportedly

chose to forgo filing her naturalization application, she was

not eligible for suspension of deportation. Section 244(a)(2)

was still on the books in 1990, but that made no difference in

Hernandez de Anderson’s situation. Thus, to the extent that

she may have relied on its future availability when she

decided to wait, she had no other choice. How did she rely to

her detriment? In other words, what was available to her in

1990 that she gave up by waiting another five years? I can

think of nothing. 

Hernandez de Anderson’s situation therefore is different

from the guilty plea context because there the decision to

enter a guilty plea and accept conviction results in detrimental

consequences under subsequently enacted law. St. Cyr, 533

U.S. at 321-22. When we invalidate retroactive application of

new laws, we ask, “Would the alien have accepted a guilty

plea if he had known that his conviction would bar him categorically from certain discretionary relief in the future?” The

answer typically is no, and we allow him to pursue relief

under the old law. Here we ask, “Would Hernandez de Anderson have waited to file her naturalization application if she

had known that suspension of deportation would not be avail9504 HERNANDEZ DE ANDERSON v. GONZALES
able to her in the future?” Whether the answer is yes or no

makes no difference because her decision not to file in 1990

resulted in no detriment. See Kelava, 434 F.3d at 1124 (noting

the Supreme Court’s emphasis on the petitioner’s detrimental

reliance in St. Cyr). For all practical purposes, she could have

done nothing differently; her decision merely maintained the

status quo of ineligibility. 

The majority suggest that by filing her application Hernandez de Anderson risked awakening the sleeping bureaucratic giant who might then resolve to initiate deportation

proceedings against her. But the INS could have done so at

any time following her release from prison. That was a risk

she always faced and one she could do absolutely nothing

about other than pray that the knock on her door would never

come. 

As a result, Hernandez de Anderson’s situation is also fundamentally different from those situations in which other circuits have invalidated retroactive application of AEDPA

based on a delay in filing a § 212(c) application. See, e.g.,

Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206-10 &

n.11 (5th Cir. 2007) (invalidating retroactive application of

AEDPA where an alien was eligible for § 212(c) relief but

deliberately chose to postpone filing in order to develop a

stronger application); Wilson v. Gonzales, 471 F.3d 111, 113

(2d Cir. 2006) (same); Restropo v. McElroy, 369 F.3d 627,

637 (2d Cir. 2004) (same).4 In Restropo v. McElroy, for example, the Second Circuit reasoned that “it is certainly plausible

that aliens who decided to forgo affirmatively filing a 212(c)

application would have acted differently if they had foreseen

the AEDPA’s enactment.” Id. Restropo and its progeny actually undermine the majority’s holding because in each case

4Restropo, Wilson, and Carranza-De Salinas each involved aliens who

had been convicted after a jury trial—as opposed to a guilty plea. As a

result, the petitioners were forced to identify a reliance interest separate

from the quid pro quo exchange underlying St. Cyr. 

HERNANDEZ DE ANDERSON v. GONZALES 9505
the alien’s decision affected the availability of relief for which

he or she was already eligible. See Carranza-De Salinas, 477

F.3d at 202 (“[Petitioner] claims she did not immediately

apply for § 212(c) discretionary relief after her [jury] conviction because she intended to apply . . . [when] she would be

able to show a more extensive record of rehabilitation and

community ties.”); Wilson, 471 F.3d at 122 (noting that even

though Wilson “could have filed an affirmative § 212(c)

application,” the record was unclear as to whether “he ever

intended to do so”); Restropo, 369 F.3d at 637 (“Many [aliens

in petitioner’s position] might well have chosen affirmatively

to file the ‘weaker,’ but still valid, application. To the extent

that aliens like Petitioner detrimentally adapted their positions

in reliance on their expectation of continued eligibility for

212(c) relief, the factors considered in [a previous Second

Circuit case] appear to weigh against proscribing such relief

retroactively.” (emphasis added)). It may well be that the

aliens in each of these cases would not have waited to file

applications for § 212(c) relief if they had known that Congress would strip their eligibility for that form of relief. 

Here, at the time of her alleged decision to wait, Hernandez

de Anderson had no chance of relief via suspension of deportation. Had she been eligible for suspension of deportation in

1990 and made an analogous decision to strengthen her application, we might need to decide whether to extend our court’s

retroactivity analysis beyond the plea agreement context. But

that is not the case before us.5 The majority’s emphasis on

5Hernandez de Anderson’s decision to wait actually can be viewed as

favorable, since she spent another five years free of adverse immigration

proceedings. I find puzzling the opinion’s assertion that Hernandez de

Anderson somehow would have been significantly less likely to have

brought her criminal convictions to the INS’s attention by applying for

naturalization if she had known that suspension of deportation was not

available. The same can be said for any alien who seeks naturalization. At

some point, they must come forward and reveal their criminal history. If

naturalization was her goal, Hernandez de Anderson had no choice other

than to reveal herself to INS. I find it difficult to invalidate retroactive

9506 HERNANDEZ DE ANDERSON v. GONZALES
Hernandez de Anderson’s choice to wait five years before

applying for naturalization is therefore little more than a red

herring.

B

Removing from the retroactivity analysis Hernandez de

Anderson’s decision to wait five years before filing her naturalization application, the majority is left with nothing more

than the act of her filing. While it is true that the law in effect

at the time of her filing permitted discretionary relief in the

form of suspension of deportation, we have held previously

that an alien cannot establish impermissible retroactivity

based merely on the decision to file. For example, in VasquezZavala v. Ashcroft, 324 F.3d 1105 (9th Cir. 2003), we held

that an illegal alien had no settled expectation that the former

INS would initiate pre-IIRIRA deportation proceedings (as

opposed to post-IIRIRA removal proceedings) following the

denial of his asylum application based solely on the fact that

he submitted his application prior to IIRIRA’s effective date.

Id. at 1108. We reasoned that “even if [Vasquez-Zavala]

assumed that the application would be denied, any expectation that an INS action would thereafter commence could not

support a sufficient expectation as to when it would commence.” Id.; see also Jimenez-Angeles v. Ashcroft, 291 F.3d

594, 600 (9th Cir. 2002) (holding that IIRIRA applied to an

alien who presented herself to the INS before IIRIRA’s effective date in the hope of invoking pre-IIRIRA law). We reiterated the same logic in Lopez-Urenda v. Ashcroft, 345 F.3d

788, 794 (9th Cir. 2003), which also involved an alien who

filed an asylum application before IIRIRA’s enactment: 

application of the cancellation of removal provision where the only option

that an applicant passes up—in order to seek naturalization—is to remain

in the United States as an anonymous but deportable alien. That is not detrimental reliance. It is the hope that INS will be too busy with others to

pay attention to Hernandez de Anderson. 

HERNANDEZ DE ANDERSON v. GONZALES 9507
Proceedings could have begun several months after

[Lopez-Urenda] filed his application, in which case

suspension of deportation would have remained a

viable option; or they could have begun years later,

as they did, at a time when the law had undergone

significant change. That Lopez-Urenda did not know

of the specific change—the enactment of IIRIRA

and its permanent rules abolishing suspension of

deportation—does not mean that he had a settled

expectation that proceedings would commence

before any such change took place. 

Id.

In declining to invalidate the retroactive application of

IIRIRA in Lopez-Urenda, we highlighted fundamental differences between the alien’s situation in that case and the plea

bargain context in St. Cyr:

The concession of alienage in this case is not comparable to the numerous constitutional rights the petitioner in St. Cyr relinquished, including the right to

trial by jury and all of its attendant safeguards. Similarly, any benefit the government may have gained

in this case—such as the resources it saved in locating Lopez-Urenda and locating evidence to support

its proceedings—are not so weighty as to create a

settled expectation that suspension of deportation

would remain available in exchange. 

Id. at 796. 

The same reasoning applies to Hernandez de Anderson; she

simply cannot establish the quid pro quo recognized in St.

Cyr. Invalidating retroactivity based merely on the act of filing prior to IIRIRA’s effective date conflicts with our reasoning in Lopez-Urenda, Jimenez-Angeles, and Vasquez-Zavala.

6

6Notably, our reasoning in these cases did not rely on the petitioners’

status as illegal aliens. As such, Hernandez de Anderson’s status as a law9508 HERNANDEZ DE ANDERSON v. GONZALES
More importantly, holding that an alien can establish reasonable reliance based on nothing more than the date of filing

would vitiate IIRIRA (and AEDPA) retroactivity altogether,

allowing any alien who filed his application prior to the statutes’ effective dates to claim an impermissible effect and seek

protection from laws Congress repealed over ten years ago.

III

Perhaps swayed by the sympathetic facts of this case, the

majority has stretched our retroactivity doctrine in the criminal alien context beyond the bounds set by our precedent. I

agree that Hernandez de Anderson’s situation is certainly

sympathetic. But one wonders whether the majority would

have been so eager to rewrite our jurisprudence on less heartwrenching facts. And while I share the majority’s sympathy,

I cannot join an opinion that grants relief at the expense of

settled law. The majority opinion conflicts with our prior

holdings restricting the retroactivity analysis in the criminal

ful permanent resident who filed a naturalization application (as opposed

to an asylum application) does not undermine the binding force of these

precedents. If anything, the fact that she filed a naturalization application

makes Hernandez de Anderson’s reliance argument even weaker than

those put forth in our earlier cases, where the INS was under an affirmative obligation to initiate removal proceedings upon the denial of an asylum application. See, e.g., Vasquez-Zavala, 324 F.3d at 1108 (“Petitioners

observe that asylum is the only alien application that necessarily results

in an INS action in the event it is denied. Unlike other alien applications,

where, upon denial, the INS retains discretion to formally charge the alien,

in asylum cases, the INS must refer the alien to deportation (pre-IIRIRA)

or removal proceedings (IIRIRA) once the application is denied.”). Hernandez de Anderson’s argument that she should have the benefit of preIIRIRA suspension of deportation therefore rests on two separate assumptions: (1) the former INS’s denial of her naturalization application and (2)

its discretionary decision to initiate deportation/removal proceedings. Cf.

id. (discounting petitioners’ argument where it was based on the presumption that the application for discretionary relief—i.e., asylum—would be

denied). I cannot support such an attenuated concept of “reasonable” reliance. 

HERNANDEZ DE ANDERSON v. GONZALES 9509
immigrant context to the quid pro quo exchange inherent in

plea bargains where reasonable reliance can be shown.

Because the majority’s reasoning relies on inadequate

grounds to establish the necessary reliance interest, I respectfully dissent.7

7Because I do not agree that Hernandez de Anderson has established a

sufficient reliance interest, I would not reach the question of whether an

alien must show objective or subjective reliance. 

9510 HERNANDEZ DE ANDERSON v. GONZALES