Hernandez-Castillo v. Gonzales - Opposition

No. 05-1251

In the Supreme Court of the United States

ENRIQUE HERNANDEZ-CASTILLO, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

DONALD E. KEENER
ALISON R. DRUCKER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

As a result of 1996 amendments to the Immigration and Nationality Act, a removable alien is ineligible for discretionary relief from removal if the alien was previously convicted of an aggravated felony. In INS v. St. Cyr, 533 U.S. 289 (2001), this Court held that it would be impermissibly retroactive to apply the 1996 amendments to an alien convicted of an aggravated fe lony through a plea agreement at a time when the conviction would not have rendered the alien ineligible for discretionary relief. The question presented is whether this Court's holding in St. Cyr applies to an alien convicted of an aggravated felony at trial.

In the Supreme Court of the United States

No. 05-1251

ENRIQUE HERNANDEZ-CASTILLO, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-8) is reported at 436 F.3d 516. The order and judgment of the district court granting the motion to dismiss (Pet. App. 9-12) are unreported. The order of the district court denying the motion to dismiss (Pet. App. 13-19) is reported at 402 F. Supp. 2d 749. The decisions of the Board of Immigration Appeals (App., infra, 1a) and the immigration judge (App., infra, 2a-5a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on January 13, 2006. The petition for a writ of certiorari was filed on March 28, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(c) (1988) (repealed 1996), au thorized a permanent resident alien domiciled in the United States for seven consecutive years to apply for discretionary relief from exclusion. While, by its terms, Section 212(c) applied only to exclusion proceedings, it was construed to apply to deportation proceedings as well. See INS v. St. Cyr, 533 U.S. 289, 295 (2001).

In the Immigration Act of 1990, Congress amended Section 212(c) to make ineligible for discretionary relief any alien previously convicted of an aggravated felony who had served a prison term of at least five years. See Pub. L. No. 101-649, Tit. V, § 511, 104 Stat. 5052. Subse quently, in the Antiterrorism and Effective Death Pen alty Act of 1996 (AEDPA), Congress amended Section 212(c) to make ineligible for discretionary relief any alien previously convicted of certain offenses, including an aggravated felony, without regard to the amount of time spent in prison. See Pub. L. No. 104-132, Tit. V, § 440(d), 110 Stat. 1277. Later in 1996, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress repealed Section 212(c), see Pub. L. No. 104-208, Tit. III, § 304(b), 110 Stat. 3009- 597, and replaced it with Section 240A of the INA, 8 U.S.C. 1229b, which provides for a form of discretionary relief known as cancellation of removal. Like Section 212(c) as amended by AEDPA, Section 240A makes ag gravated felons ineligible for discretionary relief. See 8 U.S.C. 1229b(a)(3).

In St. Cyr, supra, this Court held, based on princi ples of non-retroactivity, that IIRIRA's repeal of Sec tion 212(c) should not be construed to apply to an alien convicted of an aggravated felony through a plea agree ment at a time when the conviction would not have ren dered the alien ineligible for relief under Section 212(c). 533 U.S. at 314-326. The question presented in this case is whether this Court's holding in St. Cyr applies to an alien convicted of an aggravated felony at trial.

2. Petitioner is a native and citizen of Mexico. In 1985, he was admitted into the United States as a lawful permanent resident. In 1989, a jury found him guilty of felony indecency with a child. In 2001, the Immigration and Naturalization Service (INS) commenced removal proceedings against him.1 It alleged that petitioner was deportable because the offense of which he was con victed was both an aggravated felony and a crime involv ing moral turpitude committed within five years after admission for which a prison term of at least one year may be imposed. Pet. App. 2; see 8 U.S.C. 1101(a)(43)(A), 1227(a)(2)(A)(i) and (iii).

Petitioner conceded that he was deportable but sought discretionary relief from deportation under Sec tion 212(c) of the INA. The immigration judge (IJ) ruled that Section 212(c) relief is unavailable to an alien convicted of an aggravated felony before the 1996 amendments to the INA if the alien was convicted at trial. Because petitioner was convicted at trial, the IJ found that his application for Section 212(c) relief was pretermitted and ordered him removed to Mexico. Pet. App. 2-3; App., infra, 2a-5a.

The Board of Immigration Appeals affirmed the IJ's decision without opinion. Pet. App. 3; App., infra, 1a.

3. Petitioner filed a petition for a writ of habeas cor pus, arguing that he had been unlawfully denied the right to seek a waiver of deportation. Pet. App. 3. The respondent in the habeas corpus action, an official with United States Immigration and Customs Enforcement, filed a motion to dismiss, which the district court at first denied. Id. at 13-19. Finding the Third Circuit's deci sion in Ponnapula v. Ashcroft, 373 F.3d 480 (2004), per suasive, the district court determined that an alien con victed of an aggravated felony at trial before the 1996 amendments to the INA is eligible for relief under Sec tion 212(c) if he rejected a plea offer. Pet. App. 17-18. The court then directed the parties to conduct further discovery addressed to whether petitioner was offered a plea agreement. Id. at 18. Approximately two months later, after discovery was completed, the district court granted the motion to dismiss, finding that there was still no evidence in the record that petitioner had been offered a plea agreement. Id. at 4, 9-12.

4. The court of appeals vacated the district court's finding of habeas corpus jurisdiction, converted peti tioner's habeas corpus petition into a petition for review pursuant to the REAL ID Act of 2005, Pub. L. No. 109- 13, Div. B, Tit. I, § 106, 119 Stat. 310-311, and denied the petition for review. Pet. App. 1-8. The court held that applying the 1996 amendments to the INA to an alien whose aggravated-felony conviction antedates them does not "yield[] an impermissible retroactive effect" when the conviction "follow[s] a jury trial, rather than [being] pursuant to a guilty plea." Id. at 7. Quoting the Second Circuit's decision in Rankine v. Reno, 319 F.3d 93, cert. denied, 540 U.S. 910 (2003), the court of appeals rea soned that "aliens who chose to go to trial are in a differ ent position with respect to [the 1996 amendments to the INA] than aliens * * * who chose to plead guilty," be cause the former did not "detrimentally change[] [their] position in reliance on continued eligibility for § 212(c) relief" and can "point[] to no conduct on their part that reflects an intention to preserve their eligibility for re lief under § 212(c) by going to trial." Pet. App. 7 (quot ing Rankine, 319 F.3d at 99-100). The court therefore "agree[d] with the IJ's order declaring [petitioner] ineli gible for § 212(c) relief." Id. at 8. In a footnote, the court of appeals rejected petitioner's request for "an opportunity to present evidence that he had been of fered a plea agreement before his trial," reasoning that, even if there were such evidence, "the refusal to take a plea agreement" would not amount to "detrimental reli ance on § 212(c)." Id. at 8 n.3.

ARGUMENT

Petitioner contends (Pet. 8-16) that the holding of St. Cyr, which involved aliens convicted of an aggravated felony through a plea agreement, should be extended to aliens convicted at trial. The court of appeals correctly held otherwise, and its decision does not conflict with the decision of any other court of appeals. Further re view is therefore unwarranted. Indeed, this Court has already denied petitions raising the claim that petitioner raises in at least three prior cases. See Thom v. Gonza les, 126 S. Ct. 40 (2005); Stephens v. Ashcroft, 543 U.S. 1124 (2005); Reyes v. McElroy, 543 U.S. 1057 (2005).

1. In St. Cyr, this Court placed considerable empha sis on the fact that "[p]lea agreements involve a quid pro quo," whereby, "[i]n exchange for some perceived bene fit, 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. See also Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2431-2432 & n.10 (2006) (reaffirming the quid pro quo basis for the holding in St. Cyr).

In Rankine v. Reno, 319 F.3d 93, cert. denied, 540 U.S. 910 (2003), on which the decision below relied (Pet. App. 7-8 & n.3), the Second Circuit correctly concluded that "aliens who chose to go to trial are in a different position with respect to IIRIRA than aliens like St. Cyr who chose to plead guilty." 319 F.3d at 99. As the court explained in Rankine, unlike an alien who pleaded guilty, an alien who went to trial did not "detrimentally change[] his position in reliance on continued eligibility for § 212(c) relief." Ibid. An alien who pleaded guilty made a decision "to abandon any rights and admit guilt-thereby immediately rendering [himself] deportable-in reliance on the availability of the relief offered prior to IIRIRA." Ibid. An alien who went to trial, by contrast, did so "to challenge the underlying crime that could render [him] deportable and, had [he] succeeded, § 212(c) relief would be irrelevant." Id. at 99-100. In short, as Rankine correctly recognized, it is "the lack of detrimental reliance on § 212(c) by those aliens who chose to go to trial" that "puts them on differ ent footing than aliens like St. Cyr." Id. at 102.

2. The Second Circuit (in Rankine) and the Fifth Circuit (in this case) are not the only courts of appeals that have declined to extend the holding of St. Cyr to aliens convicted at trial. Five others have done so as well. See Dias v. INS, 311 F.3d 456 (1st Cir. 2002) (per curiam), cert. denied, 539 U.S. 926 (2003); Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1036-1037 (7th Cir. 2004) (per curiam); Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-1122 (9th Cir. 2002), cert. denied, 539 U.S. 902 (2003); Brooks v. Ashcroft, 283 F.3d 1268, 1273-1274 (11th Cir. 2002). And, contrary to petitioner's conten tion (Pet. 8, 12-15), those decisions do not conflict with the Third Circuit's decision in Ponnapula v. Ashcroft, 373 F.3d 480 (2004).

While Ponnapula did address the question whether the 1996 amendments to the INA apply to aliens con victed of an aggravated felony at trial before 1996, it did not hold that the amendments do not apply to any alien convicted at trial. The Third Circuit framed the ques tion to be decided in Ponnapula as "what aliens-if any-who went to trial and were convicted did so in rea sonable reliance on the availability of § 212(c) relief." 373 F.3d at 494. The court observed that, "[g]enerally speaking, reliance interests (in the legal sense) arise because some choice is made evincing reliance." Ibid. The court thus divided the category of "aliens who went to trial and were convicted prior to the effective date of IIRIRA's repeal of former § 212(c)" into (1) "aliens who went to trial because they declined a plea agreement that was offered to them" and (2) "aliens who went to trial because they were not offered a plea agreement." Ibid. Since aliens in the latter category "had no oppor tunity to alter their course in the criminal justice system in reliance on the availability of § 212(c) relief," the court "highly doubt[ed]" that aliens who were not of fered a plea agreement "have a reliance interest that renders IIRIRA's repeal of former § 212(c) imper missibly retroactive as to them." Ibid. The Third Cir cuit ultimately held that "aliens * * * who affirmatively turned down a plea agreement had a reliance interest in the potential availability of § 212(c) relief." Ibid.

Petitioner was convicted of an aggravated felony at trial, but he did not decline a plea agreement. Petitioner asserts that he "was offered the ability to enter into a plea agreement" (Pet. 12) and "rejected" it (Pet. 6). But the district court explicitly found, after giving petitioner the opportunity to conduct discovery, that the "[e]vidence in the record does not show that [he] was offered a plea" (Pet. App. 12); the court of appeals did not disturb that finding (id. at 8 n.3); and petitioner does not challenge it in this Court. Petitioner therefore would not be able to prevail even under the Third Cir cuit's decision in Ponnapula. With respect to aliens who were convicted of an aggravated felony at trial before the 1996 amendments to the INA and did not decline a plea agreement, there is no conflict between the decision below and Ponnapula on the question whether applica tion of the 1996 amendments would be impermissibly retroactive.

3. There are three additional reasons why certiorari should be denied. First, the question presented in the petition has diminishing prospective significance, be cause it affects only removal proceedings for aliens con victed of an aggravated felony at trial before the 1996 amendments to the INA. That is an ever-diminishing class.

Second, it would in any event be premature for the Court to decide whether St. Cyr's holding applies to aliens convicted of an aggravated felony at trial. A final rule adopted by the Department of Justice to implement St. Cyr by amending certain provisions of Title 8 of the Code of Federal Regulations, see Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57,826 (2004), provides that the 1996 amendments to the INA apply to aliens con victed at trial. 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 section 212(c) relief under St. Cyr," and then stated that it "has determined to retain the distinction between ineligible aliens who were convicted after criminal tri als[] and those convicted through plea agreements." Id. at 57,828. That determination is reflected in the amended regulations, which took effect on October 28, 2004. See id. at 57,833 (8 C.F.R. 1003.44(a)) ("This sec tion is not applicable with respect to any conviction en tered after trial."); id. at 57,835 (8 C.F.R. 1212.3(h)) ("Aliens are not eligible to apply for section 212(c) relief under the provisions of this paragraph with respect to convictions entered after trial."). Only a few courts have considered these regulations in deciding whether St. Cyr's holding applies to aliens convicted at trial, see, e.g., Alexandre v. U.S. Attorney General, No. 05-15421, 2006 WL 1678202, at *3 (11th Cir. Apr. 12, 2006) (per curiam), and this Court should not be one of the first to do so.

Finally, there is a factual distinction between this case and St. Cyr that makes it an unsuitable vehicle for deciding the question presented. In St. Cyr, the Court addressed the situation of aliens who pleaded guilty af ter Section 212(c) was amended in 1990 to render ineligi ble any alien convicted of an aggravated felony who had served a prison term of at least five years. A plea agree ment providing for a sentence of less than five years thus would have assured the alien's eligibility for relief under the amended provision. See St. Cyr, 533 U.S. at 293, 321-324. In those circumstances, in which the pros ecutor received the benefit of a plea agreement that was likely facilitated by the alien's belief that he would be eligible for Section 212(c) relief, the Court concluded that considerations of fair notice, reasonable reliance, and settled expectations indicated that the repeal of Sec tion 212(c) had a retroactive effect. Id. at 323-324. Here, by contrast, petitioner was convicted in 1989, be fore Section 212(c) was amended to render a convicted aggravated felon ineligible if he served more than five years in prison. There accordingly was no distinct bene fit in terms of eligibility for Section 212(c) relief in ei ther going to trial or pleading guilty to the aggravated felony charge.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

PETER D. KEISLER
Assistant Attorney General

DONALD E. KEENER
ALISON R. DRUCKER
Attorneys

JULY 2006

1 The INS's immigration-enforcement functions have since been transferred to United States Immigration and Customs Enforcement in the Department of Homeland Security. See 6 U.S.C. 251 (Supp. III 2003).

 

APPENDIX A

U.S. Department of Justice
Decision of the Board
Executive Office for
of Immigration Appeals
Immigration Review

Falls Church, Virginia 22041

Date: Mar. 08, 2004

File: A39-285-860 - SAN ANTONIO

In re: HERNANDEZ-CASTILLO, ENRIQUE

IN REMOVAL PROCEEDINGS

APPEAL
ON BEHALF OF RESPONDENT: Esparza Jr., Thomas
Esq.

ON BEHALF OF DHS: Juan Carlos Rodriguez,
Assistant District Counsel

ORDER:

PER CURIAM. The Board affirms, without opinion, the results of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.1(e)(4).

______[ILLEGIBLE]____

FOR THE BOARD

 

 

APPENDIX B

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES DISTRICT COURT

______________________________________________________

File No. : A 39 285 860 November 19, 2002

In the Matter of

Enrique Hernandez-Castillo, Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

 

 

 

 

APPLICATIONS:

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act: alien convicted of an aggravated felony as defined in Section 101(a)(43)(A) of the Act.

Section 237(a)(2)(i) of the Immigration and Nationality Act: alien convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed.

Section 212(c) of the Act prior to its amendment: waiver of excludability.

ON BEHALF OF RESPONDENT:

Thomas Esparza, Esquire
1811 South First Street
Austin, Texas 78704

ON BEHALF OF SERVICE:

Juan Carlos Rodriguez, Esquire
Immigration and Nationalization Service
P.O. Box 1939
San Antonio, Texas 78297

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a male, native and citizen of Mexico who was admitted to the United States as an immigrant on or about April 15, 1985. On September 6, 2001, a Notice to Appear was issued charging the respondent with deportability as shown above, based upon the alleged conviction for the offense of indecency with a child, on or about September 13, 1989. At a hearing before the undersigned, the respondent, through counsel, admitted the allegations in the Notice to Appear and conceded deportability as charged.

The respondent requested an opportunity to seek relief from removal pursuant to Section 212(c) of the Immigration and Nationality Act as it existed prior to its amendment by the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The respondent also sought to apply for Section 212(c) relief pursuant to the decision of the United States Supreme Court in INS v. St. Cyr, 121 S. Ct. 2271 (2001). The respondent's application for that relief is in the record as Exhibit 3, and he has also provided supporting documentation. See Group Exhibits 4 and 5.

The Service takes the position that the respondent is not eligible for a waiver of excludability because unlike the alien in St. Cyr, this respondent was convicted following a plea of not guilty and he did not plead guilty or nolo contendere. That is, the respondent did not plead to the charge that rendered him removable with an expectation that he would be eligible to file for Section 212(c) relief. The respondent argues that he should be allowed to pursue Section 212(c) relief because the respondent interprets the St. Cyr case to mean that retroactive elimination of Section 212(c) relief is prohibited.

The Court had a chance to review the case law in this matter prior to the hearing on the merits, and found several cases where the Federal Courts on this very issue, have determined that St. Cyr does not apply to aliens like this respondent who contested the criminal charge and did not plead guilty or nolo contendere. See Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001); United States v. Herrera-Blanco, 232 F.3d 715 (9th Cir. 2000); Bensusan v. Reno, 225 F.3d 653 (4th Cir. 2000).

I also note that the Supreme Court case held that it was possible reliance upon the availability of Section 212(c) relief that resulted in its ruling that aliens that pled to the criminal charge against them should not be deprived of their eligibility to apply for Section 212(c) relief because they may have made that plea in reliance upon the availability of relief. This respondent can make no such argument because he, in fact, pled not guilty and exercised his right to a trial.

I've also reviewed the proposed regulations to see if they might provide some benefit to this respondent if they were to become final in the form in which they are proposed. However, having reviewed those proposed regulations which would amend some parts of 8 C.F.R. Section 3, Section 212, and Section 240, it does not appear that they would provide any benefit to this respondent in the form in which they are proposed. They do provide that, under some circumstances, an alien who is convicted prior to April 1, 1997, retains eligibility for Section 212(c) relief. Nonetheless, that eligibility is limited to respondents who were convicted pursuant to plea agreements.

Accordingly, I find that the respondent is unable to establish eligibility for Section 212(c) relief for the reasons stated herein. The respondent has not applied for any other form of relief from removal, nor does it appear that he would be eligible for any such relief.

The following orders are hereby entered.

ORDERS

IT IS ORDERED that the respondent's application for a waiver of excludability pursuant to Section 212(c) of the Act prior to its amendment, be pretermitted and denied for statutory ineligibility

IT IS FURTHER ORDERED that the respondent be removed from the United States to Mexico on the charges contained in the Notice to Appear.

 

________________________

GLENN P. MCPHAUL
Immigration Judge