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No. 08-878

 

In the Supreme Court of the United States

GABRIEL CRUZ-GARCIA, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
MICHAEL F. HERTZ
Acting Assistant Attorney
General
DONALD E. KEENER
ANDREW C. MACLACHLAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

In 1996, Congress repealed Section 212(c) of the Im migration and Nationality Act, 8 U.S.C. 1182(c) (1994), which provided for a discretionary waiver of deporta tion, and replaced it with another form of discretionary relief not available to aliens convicted of certain crimes, including aggravated felonies and controlled-substance offenses. In INS v. St. Cyr, 533 U.S. 289 (2001), this Court held that the repeal of Section 212(c) did not ap ply retroactively to an alien previously convicted of an aggravated felony through a plea agreement at a time when the conviction would not have rendered the alien ineligible for discretionary relief. The questions pre sented are:

1. Whether this Court's holding in St. Cyr applies to an alien who was convicted of a controlled-substance of fense after trial, and who therefore did not relinquish his right to a trial in reliance on potential eligibility for a waiver under Section 212(c).

2. Whether, for purposes of the retroactive avail ability of relief under former Section 212(c), it violates the equal protection component of the Due Process Clause to distinguish between an alien who is removable on the basis of a conviction that followed a guilty plea and one whose conviction occurred after a jury trial.

 

In the Supreme Court of the United States

No. 08-878

GABRIEL CRUZ-GARCIA, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

 

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1-2) is not published in the Federal Reporter but is reprinted in 285 Fed. Appx. 446. The orders of the Board of Immi gration Appeals (Pet. App. 3-4) and the immigration judge (Pet. App. 5-8) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 11, 2008. A petition for rehearing was denied on November 20, 2008 (Pet. App. 9). The petition for a writ of certiorari was filed on January 2, 2009. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Former Section 212(c) of the Immigration and Nationality Act of 1952 (INA), 8 U.S.C. 1182(c) (1988) (repealed 1996), authorized some permanent resident aliens domiciled in the United States for seven consecu tive years to apply for discretionary relief from exclu sion. While, by its terms, Section 212(c) applied only to exclusion proceedings, it was generally construed as being applicable in both deportation and exclusion pro ceedings. See INS v. St. Cyr, 533 U.S. 289, 295 (2001).

In 1996, in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 440(d), 110 Stat. 1277, Congress amended Section 212(c) to make ineligible for discretionary relief aliens previously convicted of certain criminal offenses, includ ing controlled-substance offenses. See St. Cyr, 533 U.S. at 297 n.7. Later that year, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, § 304(b), 110 Stat. 3009-597, Congress repealed Section 212(c) in its entirety, and replaced it with Section 240A of the INA, 8 U.S.C. 1229b, which now provides for a form of discretionary relief known as cancellation of removal that is not available to many criminal aliens, including those who have been convicted of an aggravated felony (which, as relevant to this case, includes a drug-trafficking crime). See 8 U.S.C. 1101(a)(43)(B), 1229b(a)(3); see also St. Cyr, 533 U.S. at 297.

In St. Cyr, this Court held, based on principles of non-retroactivity, that IIRIRA's repeal of Section 212(c) should not be construed to apply to an alien convicted of an aggravated felony through a plea agreement at a time when the conviction would not have rendered the alien ineligible for relief under Section 212(c). 533 U.S. at 314-326. In particular, the Court in St. Cyr explained that, before 1996, aliens who decided "to forgo their right to a trial" by pleading guilty to an aggravated fel ony "almost certainly relied" on the chance that, not withstanding their convictions, they would still have some "likelihood of receiving § 212(c) relief" from depor tation. Id. at 325.

On September 28, 2004, after notice-and-comment rulemaking proceedings, the Department of Justice pro mulgated regulations to take account of the St. Cyr deci sion. See Section 212(c) Relief for Aliens with Certain Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57,826 (2004). In its response to comments received on its proposed rule, the Department noted cases holding that "an alien who is convicted after trial is not eligible for [S]ection 212(c) relief under St. Cyr," and then stated that it "has determined to retain the distinction between ineligible aliens who were convicted after crimi nal trials[] and those convicted through plea agree ments." Id. at 57,828. That determination is reflected in the regulations, which make aliens ineligible to apply for relief under former Section 212(c) "with respect to convictions entered after trial." 8 C.F.R. 1212.3(h).

2. Petitioner is a native of Mexico who was admitted to the United States for lawful permanent residence in 1976. Pet. App. 6; Admin. R. 78, 117 (A.R.). On October 26, 1979, after a trial at which petitioner pleaded not guilty, a jury in the United States District Court for the Southern District of California found petitioner guilty of three counts of unlawful distribution of cocaine, in viola tion of 21 U.S.C. 841(a)(1). Pet. App. 6; A.R. 96, 117. Petitioner was sentenced to a fifteen-year term of im prisonment; all but 179 days of the sentence was sus pended, and he was placed on probation for five years. A.R. 96.

On January 25, 2005, the Department of Homeland Security commenced immigration proceedings against petitioner, charging him with being removable in light of his conviction for distribution of a controlled substance. A.R. 117-118; see 8 U.S.C. 1227(a)(2)(B)(i). Petitioner sought a waiver of removal under former Section 212(c). Pet. App. 6. On August 1, 2005, after a hearing, the im migration judge pretermitted petitioner's application for a waiver because, unlike the alien in St. Cyr, petitioner had gone to trial on his drug offense rather than plead ing guilty. Id. at 6-7 (discussing St. Cyr, supra; Armen dariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-1122 (9th Cir. 2002), cert. denied, 539 U.S. 902 (2003); and "[t]he regulations adopted by the Attorney General * * * to implement the St. Cyr decision").

On August 4, 2006, the Board of Immigration Ap peals (BIA) affirmed the immigration judge's decision and dismissed petitioner's appeal concerning his eligibil ity for relief from removal. Pet. App. 3-4 (citing St. Cyr, supra; Armendariz-Montoya, supra; and Kelava v. Gonzales, 434 F.3d 1120, 1124-1125 (9th Cir.), cert. de nied, 549 U.S. 810 (2006)).

3. The court of appeals denied petitioner's petition for review of the BIA's decision in a brief, unpublished, per curiam opinion dated July 11, 2008. Pet. App. 1-2. The court held that petitioner's arguments were fore closed by Armendariz-Montoya, supra, which had con cluded that aliens who "pleaded not guilty and elected a jury trial . . . [are] barred from seeking § 212(c) re lief." Pet. App. 2 (quoting Armendariz-Montoya, 291 F.3d at 1122). The court further rejected petitioner's argument that it violates equal protection to make such a distinction for purposes of the retroactive availability of relief under Section 212(c) between aliens whose con victions came after trial and those whose convictions came after a guilty plea. Ibid. On November 20, 2008, the court of appeals denied petitioner's request for re hearing en banc. Id. at 9.

ARGUMENT

1. Petitioner's first asserted ground for certiorari (Pet. 14-17) is that the Ninth Circuit created a circuit split and called a federal regulation into question by deciding that relief under former Section 212(c) does not have to be made available to aliens in deportation (as opposed to exclusion) proceedings. But the court of ap peals did not make any such ruling in petitioner's case. That issue was neither pressed nor passed upon in the court below, and it is unrelated to the retroactivity ques tion that actually was decided by the court of appeals in this case. That alone is sufficient reason to deny peti tioner's request that the Court consider that distinct is sue. See, e.g., United States v. United Foods, Inc., 533 U.S. 405, 417 (2001); Glover v. United States, 531 U.S. 198, 205 (2001).

Moreover, the decision petitioner complains about on this score-Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc)-is still pending before the Ninth Cir cuit on a petition for rehearing. See id. at 1204 (noting that "[t]he petition for rehearing remains pending" and inviting a response from the government). The govern ment filed a response (opposing further rehearing) on February 25, 2009. Accordingly, any consideration bythis Court of the separate issue decided in Abebe would be especially premature.1

2. Petitioner next contends (Pet. 17-26) that INS v. St. Cyr, 533 U.S. 289 (2001), which involved aliens con victed of an aggravated felony after a plea agreement, has been misinterpreted by the majority of the courts of appeals and that the retroactive availability of Section 212(c) relief should be extended to aliens who were found guilty of a deportable offense after a jury trial, because retroactivity analysis should not include a reli ance requirement. In the alternative, he contends (Pet. 27-34) that any reliance requirement would be satisfied by objectively reasonable reliance, which could be shown by conduct other than a guilty plea. The unpublished decision of the court of appeals does not warrant further review, because petitioner's arguments lack merit. The courts of appeals have correctly recognized that reliance is a significant factor to be considered for purposes of retroactivity analysis, although it may be given different weight in different circuits and there is variation about whether it must be actual or objectively reasonable reli ance. Furthermore, the underlying question involves the retroactive effect of a statutory repeal that occurred more than 12 years ago, and this Court has denied peti tions urging a similar extension of St. Cyr in a number of prior cases. See, e.g., Aguilar v. Mukasey, 128 S. Ct. 2961 (2008); Zamora v. Mukasey, 128 S. Ct. 2051 (2008); Hernandez-Castillo v. Gonzales, 549 U.S. 810 (2006); Thom v. Gonzales, 546 U.S. 828 (2005); Stephens v. Ashcroft, 543 U.S. 1124 (2005); Reyes v. McElroy, 543 U.S. 1057 (2005); Armendariz-Montoya v. Sonchik, 539 U.S. 902 (2003).

a. Petitioner's argument (Pet. 17-26) that the deci sion below conflicts with this Court's retroactivity analy sis by considering whether petitioner relied on Section 212(c) before it was repealed lacks merit. As this Court has explained, in determining whether a statute has a retroactive effect, a court must make a "commonsense, functional judgment" that "should be informed and guid ed by 'familiar considerations of fair notice, reasonable reliance, and settled expectations.'" Martin v. Hadix, 527 U.S. 343, 357-358 (1999) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)).

In St. Cyr itself, this Court placed considerable em phasis on the fact that "[p]lea agreements involve a quid pro quo," whereby, "[i]n exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the gov ernment numerous tangible benefits." 533 U.S. at 321- 322 (citation and internal quotation marks omitted). In light of "the frequency with which § 212(c) relief was granted in the years leading up to AEDPA and IIRIRA," the Court concluded that "preserving the pos sibility of such relief would have been one of the princi pal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial." Id. at 323. And because, in the Court's view, aliens in St. Cyr's position "almost certainly relied upon th[e] likelihood [of receiving § 212(c) relief] in deciding whether to forgo their right to a trial," the Court held that "the elimina tion of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect." Id. at 325.

In asserting that the court of appeals misinterpreted St. Cyr, petitioner principally relies (Pet. 17-26) on three of this Court's retroactivity cases: Landgraf, supra; Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997); and Martin, supra. Not only did Landgraf and Martin both specifically mention "rea sonable reliance," Martin, 527 U.S. at 358; Landgraf, 511 U.S. at 270, but all three of petitioner's cases pre dated this Court's decision in Fernandez-Vargas v. Gon zales, 548 U.S. 30 (2006), which explicitly discussed St. Cyr and confirmed the importance of reliance in its anal ysis. In Fernandez-Vargas, the Court stated that St. Cyr "emphasized that plea agreements involve a quid pro quo * * * in which a waiver of constitutional rights * * * had been exchanged for a perceived benefit * * * valued in light of the possible discretionary relief, a focus of expectation and reliance." Id. at 43-44 (inter nal quotation marks omitted). Distinguishing the situa tion of the alien in Fernandez-Vargas from that of the alien in St. Cyr, the Court remarked that, "before IIRIRA's effective date Fernandez-Vargas never availed himself of [provisions providing for discretionary relief] or took action that enhanced their significance to him in particular, as St. Cyr did in making his quid pro quo agreement." Id. at 44 n.10.

Thus, the court of appeals did not err in considering reasonable reliance as part of its "commonsense, func tional" judgment about retroactivity. Martin, 527 U.S. at 357.

b. Petitioner contends (Pet. 5-6) that there is a con flict among the circuits as to the availability of Section 212(c) relief to aliens convicted of crimes prior to the enactment of AEDPA and IIRIRA. The disagreement is quite narrow, however. Nine circuits have declined to extend the holding of St. Cyr generally to aliens con victed after going to trial rather than pleading guilty. See Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002), cert. denied, 539 U.S. 926 (2003); Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.), cert. denied, 540 U.S. 910 (2003); Mbea v. Gonzales, 482 F.3d 276, 281-282 (4th Cir. 2007); Her nandez-Castillo v. Moore, 436 F.3d 516, 520 (5th Cir.), cert. denied, 549 U.S. 810 (2006); United States v. Zuñiga-Guerrero, 460 F.3d 733, 737-739 (6th Cir. 2006), cert. denied, 549 U.S. 1145 (2007); United States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir.), cert. denied, 129 S. Ct. 489 (2008); Hernandez de Anderson v. Gonza les, 497 F.3d 927, 940 (9th Cir. 2007); Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir. 2006); Ferguson v. United States Att'y Gen., No. 08-10806, 2009 WL 824434 (11th Cir. Mar. 31, 2009).2 Only the Third Circuit has held that no showing of reliance is required and that new le gal consequences attached by IIRIRA to an alien's con viction were sufficient to prevent the BIA from preclud ing Section 212(c) relief. See Atkinson v. Attorney Gen., 479 F.3d 222, 231 (2007).3 Retreating from dictum in Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), which had suggested that an alien who had not been of fered a guilty plea would be unable to establish reliance for purposes of retroactivity analysis, id. at 494, the court in Atkinson expressly addressed "the situation of aliens who, like Atkinson, had not been offered pleas and who had been convicted of aggravated felonies following a jury trial at a time when that conviction would not have rendered them ineligible for [S]ection 212(c) re lief."4 479 F.3d at 229-230.

Petitioner does not, however, mention the Atkinson court's acknowledgment that Atkinson might be pre cluded from relief under Section 212(c) because he had not acquired seven years of unrelinquished, lawful per manent residence in the United States when he commit ted an aggravated felony. See 479 F.3d at 230 n.7. Peti tioner himself would fail under such a standard because, unlike the alien in St. Cyr, he had been a lawful perma nent resident for only three years at the time of his con viction, A.R. 78, 117-far less than the seven-year mini mum required for eligibility under Section 212(c). Cf. Jurado-Delgado v. Attorney Gen. of the United States, No. 06-4495, 2009 WL 90850, at *10 (3d Cir. Jan. 15, 2009) (Sloviter, J., concurring) (concluding that an alien's "right to § 212(c) relief had not vested" because he "had not established seven years of continuous pres ence at the time of his commission of the offenses lead ing to" the convictions that rendered him ineligible for cancellation of removal). Accordingly, even if the issue here otherwise warranted review, which it does not, this case would not be a suitable vehicle for its consideration.

c. Petitioner's alternative argument (Pet. 28-34)- that he could establish objectively reasonable reliance in accordance with decisions from the Second, Ninth, and Tenth Circuits-is unpersuasive. His circumstances are different from those of the alien in the Tenth Circuit's decision in Hem, because Hem made an objectively rea sonable decision to forgo a right to an appeal that would have put him "at risk of being sentenced to a sentence longer than 5 years * * * making him ineligible for § 212(c) relief."5 458 F.3d at 1199. For similar reasons, petitioner's case is also materially different from that of the alien in the Ninth Circuit's decision in Hernandez de Anderson, who had taken the affirmative step of bring ing "herself-and her criminal conviction-to the INS's attention by applying for naturalization," and who had, in doing so, relied upon the potential availability of sus pension of deportation by waiting to apply for natural ization until she had accrued the ten years of continuous residence that made her eligible for such relief. 497 F.3d at 936-937, 941-943. Petitioner points to no affir mative act he committed in reliance on the availability of Section 212(c) before its repeal.6

Presumably for that reason, petitioner stresses (Pet. 32-33) the Second Circuit's decision in Restrepo, which remanded an alien's habeas petition to the district court to allow him to attempt to show that he had made a "choice to forgo filing an affirmative application [for Section 212(c) relief] in the hope of building a stronger record and filing at a later date." Restrepo v. McElroy, 369 F.3d 627, 637, 638-639 (2004).7 Although petitioner correctly notes that Restrepo did not "definitively decide whether that [form of] reliance must be actual or reason able," Pet. 33, he omits to mention that the Second Cir cuit has since held that any alien seeking to benefit from the argument that he "delayed filing an affirmative § 212(c) application to build a stronger case * * * must make an individualized showing of reliance." Wilson v. Gonzales, 471 F.3d 111, 122 (2d Cir. 2006) (emphasis added); see also Carranza-de Salinas v. Gonzales, 477 F.3d 200, 210 (5th Cir. 2007) (following Wilson and re manding to the BIA to allow an alien to "demonstrate * * * that she affirmatively decided to postpone her § 212(c) application to increase her likelihood of relief"). Petitioner does not cite any case that found such a show ing had been made, and he does not even attempt to make any individualized showing. To the contrary, he merely suggests (Pet. 33) that "it is reasonable to pre sume" that he failed to apply for Section 212(c) relief before IIRIRA was enacted because he was attempting "to accumulate greater equities over time."

Even assuming that reliance in the form of purpose ful waiting could be shown on the basis of an objective rather than a subjective standard, the 17-year period between petitioner's conviction and the repeal of Section 212(c) is much longer than the comparable periods in cases that contemplated the possibility of a viable claim of reliance. See Carranza-de Salinas, 477 F.3d at 202 (less than 38 months between conviction and IIRIRA's enactment); Wilson, 471 F.3d at 113 (less than 42 months between last conviction and IIRIRA's enact ment); Restrepo, 354 F. Supp. 2d at 255 (less than 51 months between sentencing and AEDPA's enactment). Indeed, given petitioner's failure to act during those 17 years-or even during the additional six months be tween IIRIRA's enactment and the effective date of its repeal of Section 212(c), see IIRIRA § 309(a), 110 Stat. 3009-625-it is most reasonable to conclude that peti tioner had no intention whatsoever of applying for Sec tion 212(c) relief, but was instead simply hoping that the government would not try to remove him on account of his conviction on three counts of drug trafficking.

3. Petitioner also contends (Pet. 34-36) that the court of appeals' decision violates the equal protection component of the Due Process Clause because it "cre ates an irrational distinction" between two groups of al iens he claims are "similarly situated": those who were convicted before AEDPA and IIRIRA as a result of pleading guilty, and those who were convicted before AEDPA and IIRIRA as a result of a trial. Pet. 35.

Petitioner does not suggest that there is any dis agreement among the courts of appeals on that question. In fact, one case he cites (Pet. 5) for a different proposi tion expressly rejected an equal protection claim about IIRIRA's retroactive repeal of Section 212(c) on the ground that there is "a rational basis in differentiating between a defendant who pleads guilty versus a defen dant who goes to trial." Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir. 2002).

Moreover, the court of appeals correctly rejected pe titioner's equal protection argument, because he was not similarly situated with aliens the court found to be eligi ble for Section 212(c) relief. See Caban v. Mohammed, 441 U.S. 380, 398 (1979); Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir. 2001). Petitioner is not similarly situ ated vis-à-vis an alien in deportation proceedings com menced before AEDPA and IIRIRA, because that per son applied for a waiver before Section 212(c) was re pealed by IIRIRA, and before AEDPA's limitations on discretionary relief were effective. Nor is he similarly situated vis-à-vis an alien in later-initiated removal pro ceedings who surrendered an important legal right by pleading guilty in presumptive reliance upon existing eligibility under the law at the time. As this Court has previously recognized, the "protection of reasonable reliance interests" is sufficient to survive equal protec tion review even under the heightened scrutiny used for equal protection challenges to gender-based classifica tions. Heckler v. Mathews, 465 U.S. 728, 746 (1984). It follows a fortiori that reliance can provide the basis for a legitimate distinction in the immigration context.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
MICHAEL F. HERTZ
Acting Assistant Attorney
General
DONALD E. KEENER
ANDREW C. MACLACHLAN
Attorneys

APRIL 2009

1 Petitioner contends that the decision in Abebe "calls into question the constitutionality of a federal regulation." Pet. 14 (capitalization modified); see also Pet. 6. After the petition for a writ of certiorari in this case was filed, however, the Ninth Circuit issued a revised opinion in Abebe, which specifically stated that it did not "cast[] any doubt on the regulation" to which petitioner refers. 554 F.3d at 1207.

2 Petitioner cites (Pet. 5) Thaqi v. Jenifer, 377 F.3d 500 (6th Cir. 2004), but that court's discussion of reliance (id. at 504 n.2) was dictum in light of its holding that applying AEDPA retroactively to the alien there would be impermissibly retroactive in light of his guilty plea (id. at 503-504). Petitioner also cites (Pet. 5) Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002), but the court there found that it had no jurisdic tion to address the alien's argument about statutory retroactivity. Id. at 1274 n.6.

3 Petitioner cites (Pet. 5) the Fourth Circuit's decision in Olatunji v. Ashcroft, 387 F.3d 383 (2004), as rejecting a reliance requirement for retroactivity analysis. The retroactivity issue in Olatunji, however, in volved the loss of an alien's ability to take brief trips abroad without subjecting himself to removal proceedings, id. at 395-396, rather than the loss of access to Section 212(c) relief. Olatunji itself distinguished the Fourth Circuit's prior decision in Chambers v. Reno, 307 F.3d 284 (2002), which involved Section 212(c). See Olatunji, 387 F.3d at 392 (discussing Chambers, 307 F.3d at 293). Even after Olatunji, the Fourth Circuit has-directly contrary to petitioner's argument-con tinued to hold that "IIRIRA's repeal of § 212(c) did not produce an im permissibly retroactive effect as applied to an alien convicted after trial." Mbea, 482 F.3d at 281.

4 Petitioner here concedes (Pet. 11 n.3) that the record does not indicate "whether [he] was offered a plea agreement."

5 Petitioner would not have been exposed to any such risk at the time he would have made any decision about appealing his 1979 conviction, because the five-year-imprisonment ceiling was not added to Section 212(c) until 1990. See Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 5052.

6 Of course, to the extent that petitioner relies upon disagreement between the Ninth Circuit's decision in this case and its earlier decision in Hernandez de Anderson, this Court does not sit to resolve intra-cir cuit disputes. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

7 On remand in Restrepo, the district court denied the alien's habeas petition without addressing whether he had made (or objectively could have made) a considered choice to wait to file a Section 212(c) applica tion, because he was statutorily ineligible for Section 212(c) relief on other grounds. See Restrepo v. McElroy, 354 F. Supp. 2d 254, 259 (E.D.N.Y. 2005).