Rodriguez-Zapata v. Gonzales - Opposition

No. 06-929

In the Supreme Court of the United States

ANTONIO RODRIGUEZ-ZAPATA, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
BARRY J. PETTINATO
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS 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, based on principles of non-retroactivity, that the 1996 amend ments do not apply to an alien convicted of an aggra vated felony through a plea agreement at a time when the conviction would not have rendered the alien in eligible for discretionary relief. The questions pre sented are:

1. Whether the holding of St. Cyr applies to an alien convicted of an aggravated felony after trial.

2. Whether the right to seek discretionary relief from removal is protected by the Due Process Clause of the Fifth Amendment.

In the Supreme Court of the United States

No. 06-929

ANTONIO RODRIGUEZ-ZAPATA, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-2a) is not published in the Federal Reporter but is reprinted at 193 Fed. Appx. 312. The decisions of the Board of Immigration Appeals (Pet. App. 3a) and the immigration judge (Pet. App. 4a-7a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 3, 2006. A petition for rehearing was denied on October 4, 2006 (Pet. App. 8a-9a). The petition for a writ of certiorari was filed on January 3, 2007 (the Court was closed on January 2). 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 Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(c) (1994) (repealed 1996), au thorized a permanent resident alien domiciled in the United States for seven consecutive years to apply for discretionary relief from exclusion.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. IV, § 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 (1996), which provides for a form of dis cretionary relief known as cancellation of removal. Like Section 212(c) as amended by AEDPA, Section 240A makes aggravated felons ineligible for discretionary relief. See 8 U.S.C. 1229b(a)(3). In St. Cyr, this Court held, based on principles of non-retroactivity, that IIRIRA's repeal of Section 212(c) should not be con strued to apply to an alien convicted of an aggravated felony through a plea agreement at a time when the con viction would not have rendered the alien ineligible for relief under Section 212(c). 533 U.S. at 314-326.

2. Petitioner is a native and citizen of Mexico. In 1981, he was admitted to the United States as a lawful permanent resident. In 1995, a jury found petitioner guilty of indecency with a child, in violation of Texas law. He was sentenced to 10 years of probation and a fine of $2000. In 2001, the Immigration and Naturalization Service (INS) commenced removal proceedings against petitioner.1 It alleged that he was removable because the offense of which he was convicted was an aggravated felony. Pet. App. 4a-5a; see 8 U.S.C. 1101(a)(43)(A), 1227(a)(2)(A)(iii).

Petitioner conceded that he was removable but sought discretionary relief from removal under Section 212(c) of the INA. The immigration judge (IJ) ruled that Section 212(c) relief is unavailable to an alien con victed of an aggravated felony before the 1996 amend ments to the INA if the alien was convicted after trial. Because petitioner was convicted after trial, the IJ found that his application for Section 212(c) relief was pretermitted and ordered him removed to Mexico. Pet. App. 4a-7a.

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

3. Petitioner then filed a petition for a writ of habeas corpus. Pet. App. 2a. He argued that applying the 1996 amendments to the INA in his case was impermissibly retroactive and that denying him relief and a hearing under Section 212(c) violated due process. Ibid. Pursu ant to the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Tit. I, § 106, 119 Stat. 310-311, the district court transferred the petition to the court of appeals, which treated it as a petition for review. Pet. App. 2a.

The court of appeals denied the petition in an unpub lished per curiam opinion. Pet. App. 1a-2a. Relying on Hernandez-Castillo v. Moore, 436 F.3d 516 (5th Cir.), cert. denied, 127 S. Ct. 40 (2006), the court held that "application of the [IIRIRA's] repeal of INA § 212(c) to aliens who, like [petitioner], went to trial and were con victed of an aggravated felony prior to the repeal of § 212(c), did not create an impermissible retroactive ef fect." Pet. App. 2a. And, relying on United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003), the court held that "eligibility for discretionary relief under INA § 212(c) is not an interest warranting constitutional due process protection." Pet. App. 2a.

ARGUMENT

1. Petitioner contends (Pet. 10-20, 25-27) that the holding of St. Cyr, which involved aliens convicted of an aggravated felony through a plea agreement, should be extended to aliens convicted after trial. The court of appeals correctly held otherwise, and further review is unwarranted. Indeed, this Court has already denied petitions raising the claim that petitioner raises in at least six prior cases, and it has denied three such peti tions in the last seven months alone. See Appel v. Gon zales, 127 S. Ct. 659 (2006); Sidhu v. Gonzales, 127 S. Ct. 495 (2006); Hernandez-Castillo v. Gonzales, 127 S. Ct. 40 (2006); Thom v. Gonzales, 126 S. Ct. 40 (2005); Stephens v. Ashcroft, 543 U.S. 1124 (2005); Reyes v. McElroy, 543 U.S. 1057 (2005).

a. 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 Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2431-2432 & n.10 (2006) (reaffirming quid pro quo basis for St. Cyr's holding).

The decision below relied (Pet. App. 2a) upon Hernandez-Castillo v. Moore, 436 F.3d 516 (5th Cir.), cert. denied, 127 S. Ct. 40 (2006), which itself "adopt[ed] th[e] reasoning" (id. at 520) of Rankine v. Reno, 319 F.3d 93 (2d Cir.), cert. denied, 540 U.S. 910 (2003). In Rankine, 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 ex plained 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] deport able-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 different footing than aliens like St. Cyr." Id. at 102.

b. Petitioner contends (Pet. 18-20) that the decision below is inconsistent with this Court's retroactivity pre cedents, which establish that the ultimate question is whether the statute at issue attaches new legal conse quences to events completed before its enactment and treat reliance as merely a factor to be considered in an swering that question. That contention is mistaken.

The most relevant of this Court's retroactivity prece dents is of course St. Cyr, which, like this case, ad dressed the question whether the 1996 amendments to the INA can be applied to bar the availability of Section 212(c) relief to an alien convicted before the amend ments' effective date. Following earlier decisions of this Court, St. Cyr makes clear that "[t]he inquiry into whether a statute operates retroactively demands a commonsense, functional judgment about 'whether the new provision attaches new legal consequences to events completed before its enactment.'" 533 U.S. at 321 (quot ing Martin v. Hadix, 527 U.S. 343, 357-358 (1999), in turn quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)). And, following earlier decisions of this Court, St. Cyr makes clear that "the judgment whether a particular statute acts retroactively 'should be in formed and guided by "familiar considerations of fair notice, reasonable reliance, and settled expectations."'" Ibid. (quoting Martin, 527 U.S. at 358, in turn quoting Landgraf, 511 U.S. at 270). Applying those principles, St. Cyr holds that "IIRIRA's elimination of any possibil ity of § 212(c) relief for people who entered into plea agreements with the expectation that they would be eli gible for such relief clearly 'attaches a new disability, in respect to transactions or considerations already past,'" principally because "[p]lea agreements involve a quid pro quo." Id. at 321 (quoting Landgraf, 511 U.S. at 269, in turn quoting Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.N.H. 1814) (No. 13,156) (Story, J.)); see id. at 321-325 (emphasizing reliance interest of aliens who entered into plea agree ment before 1996 amendments).

The court of appeals' decision in Hernandez-Castillo, on which it relied here, is entirely consistent with St. Cyr's retroactivity analysis. Hernandez-Castillo explic itly states that "there is an impermissible retroactive effect where the application of the statute 'attaches new legal consequences to events completed before [the stat ute's] enactment.'" 436 F.3d at 519 (quoting Landgraf, 511 U.S. at 270) (brackets in original). Quoting the Sec ond Circuit's decision in Rankine, Hernandez-Castillo then goes on to say that aliens who pleaded guilty "par ticipated in the quid pro quo relationship" that "gave rise to the reliance interest" found by "the Supreme Court in St. Cyr" to have "produced the impermissible retroactive effect of IIRIRA," whereas aliens convicted after trial "neither did anything nor surrendered any rights that would give rise to a comparable reliance in terest." Id. at 520 (quoting 319 F.3d at 100).

c. In addition to the Second Circuit (in Rankine) and the Fifth Circuit (in Hernandez-Castillo), five other courts of appeals have declined to extend the holding of St. Cyr to aliens convicted after trial. 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 (7th Cir. 2004) (per curiam); Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. 2002), cert. denied, 539 U.S. 902 (2003); Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002). Petitioner contends (Pet. 10-18) that Ran kine, Hernandez-Castillo, and the other decisions con flict with Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004), and Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006). That contention is likewise mistaken.

i. Like the decision below, the Third Circuit's deci sion in Ponnapula addressed the question whether the 1996 amendments to the INA apply to aliens found guilty at trial before 1996, but it did not hold that the amendments do not apply to any alien found guilty at trial. The Third Circuit framed the question to be de cided in Ponnapula as "what aliens-if any-who went to trial and were convicted did so in reasonable 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 con victed prior to the effective date of IIRIRA's repeal of former § 212(c)" into (1) "aliens who went to trial be cause 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 opportunity 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 offered a plea agreement "have a reliance interest that renders IIRIRA's repeal of former § 212(c) impermissibly retro active as to them." Ibid. The Third Circuit 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 af ter trial, but he does not contend that he declined a plea agreement before proceeding to trial. He therefore would not be able to prevail even under the Third Cir cuit's decision in Ponnapula.

ii. The decision below also does not conflict with the Fourth Circuit's decision in Olatunji, which did not even address the question whether the 1996 amendments to the INA concerning former Section 212(c) apply to aliens found guilty at trial before 1996. Olatunji in volved a different provision of IIRIRA, codified at 8 U.S.C. 1101(a)(13)(C)(v), which provides that a lawful permanent resident who travels outside the United States will not be regarded as seeking admission upon his return unless he has been convicted of certain crimes. See Olatunji, 387 F.3d at 386. The question presented in this case was addressed by the Fourth Cir cuit in another case, Chambers, supra, which held, con sistent with the decision below, that the 1996 amend ments concerning former Section 212(c) apply to an otherwise-eligible alien who was convicted after trial.

It is true that, in ruling for the alien in Olatunji, the Fourth Circuit reasoned that the fact that the provision of IIRIRA in question "attached new legal consequences to Olatunji's guilty plea is, alone, sufficient to sustain his claim," and that "no form of reliance is necessary." 387 F.3d at 389; see Pet. 13-14, 17. But Olatunji did not purport to overrule Chambers. Indeed, Olatunji explic itly distinguished Chambers, on the ground that the pro vision of IIRIRA at issue there (and here) "did not at tach new consequences to [the alien's] 'relevant past con duct,' namely his decision to go to trial." 387 F.3d at 392 (quoting Chambers, 307 F.3d at 293). Even under the reasoning employed in Olatunji, therefore, the amend ments to the INA limiting the availability of relief from removal are applicable to aliens, like petitioner, who were convicted of an aggravated felony after trial.

iii. Nor does the decision below conflict with the Tenth Circuit's decision in Hem. Like the court of ap peals here, the Tenth Circuit in Hem addressed the question whether the 1996 amendments to the INA ap ply to aliens found guilty at trial before 1996, but, like the Third Circuit in Ponnapula, it did not hold that the amendments do not apply to any alien found guilty at trial. The Tenth Circuit concluded that, "just as forego ing or exercising a right to jury trial can demonstrate objectively reasonable reliance, those who proceed to trial but forgo their right to appeal have suffered imper missible retroactive effects" under the 1996 amend ments to the INA. 458 F.3d at 1191. The Tenth Circuit reasoned that, "[w]hen a defendant, like Hem, proceeds to trial, is convicted, [and] chooses not to pursue an ap peal" that "could result in the loss of § 212(c) relief" (be cause the defendant could be resentenced to a prison term that would make him ineligible for discretionary relief), and when the defendant "subsequently loses the availability of § 212(c) relief following the Attorney Gen eral's decision to apply [the 1996 amendments to the INA] retroactively," the defendant's "right to appeal has been retroactively impaired." Id. at 1200. The Tenth Circuit thus held that "a defendant who proceeds to trial but foregoes his right to appeal when § 212(c) relief was potentially available has suffered retroactive effects under IIRIRA." Id. at 1187.

Petitioner was convicted of an aggravated felony af ter trial, but he makes no argument that would bring him within the distinct rationale of Hem and points to nothing in the record that indicates that he chose not to pursue an appeal. He therefore would not be able to prevail even under the Tenth Circuit's decision in Hem.

d. After the certiorari petition was filed in this case, the Third Circuit again addressed the retroactivity question presented here in Atkinson v. Attorney Gen eral, 479 F.3d 222 (2007). It concluded that "the rele vant question is whether IIRIRA attached new legal consequences to th[e] aliens' convictions," id. at 231, and that, with respect to aliens who "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 section 212(c) relief," applying IIRIRA "to eliminate the avail ability of discretionary relief under former section 212(c) attach[es] new legal consequences to events com pleted before the repeal," id. at 229-230. The Third Cir cuit therefore held that an alien convicted before the 1996 amendments to the INA, and otherwise eligible to seek relief under Section 212(c), cannot be precluded from seeking such relief whether the alien was convicted by guilty plea or after trial. Id. at 229-231. The court characterized as dictum-and declined to follow-its statement in Ponnapula that aliens convicted at trial before the 1996 amendments are probably not eligible for Section 212(c) relief if they were not offered a plea agreement. Id. at 231.

i. The Third Circuit's analysis in Atkinson is incon sistent with retroactivity principles applied in St. Cyr. The Third Circuit specifically declined to regard the relevant past event for retroactivity purposes to be the alien's underlying criminal conduct. See 479 F.3d at 231 n.8. And with good reason. In St. Cyr itself, the Second Circuit had rejected the proposition that the 1996 amendments repealing Section 212(c) could not be ap plied to an alien whose criminal conduct occurred before the amendments. The court concluded that "[i]t would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation." St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000) (citation omitted), aff'd, 533 U.S. 289 (2001). This Court in St. Cyr did not disagree with the Second Circuit on that point, and it likewise did not adopt the sweeping rule the Second Circuit had rejected. As explained above, see p. 5, supra, this Court instead focused on the alien's con duct at the time of conviction, when he voluntarily en tered a guilty plea, thereby changing position as part of a quid pro quo arrangement. It was that conduct by the alien, not the mere fact of conviction, at a time when he would have been eligible for Section 212(c) relief, that was the predicate for the Court's holding that the repeal of Section 212(c) could not be applied to an alien who pleaded guilty.

Where, as in Atkinson, the alien did not plead guilty, but instead was convicted after a trial, there was no such change of position or other past conduct by the alien at the time of conviction that would trigger non-retroactiv ity principles based on considerations of reasonable reli ance and fair notice. The Third Circuit in Atkinson in stead rested its ruling on the mere fact of conviction, divorced from any voluntary conduct or transaction by the alien. Nothing in St. Cyr, or in non-retroactivity principles more generally, supports that result. See Fernandez-Vargas, 126 S. Ct. at 2431-2432.

ii. Unlike the decisions on which petitioner relies, Atkinson does appear to conflict with the decision below (and with the decisions from other courts of appeals that agree with the decision below). There is no need for this Court to resolve the conflict, however, because the ret roactivity question has little prospective significance: it affects only aliens who (1) were convicted of an aggra vated felony before the 1996 amendments to the INA; (2) were convicted after a trial; and then (3) served less than five years in prison (unless they were convicted before 1990). That is a small and ever-diminishing class. The vast majority of criminal aliens against whom re moval proceedings are commenced at present-and against whom such proceedings will be commenced in the future-were convicted after the 1996 amendments to the INA; the vast majority of the small number con victed before the 1996 amendments were convicted by guilty plea; and many of those who were convicted be fore the 1996 amendments and after a trial served at least five years in prison, a circumstance that would make them ineligible for Section 212(c) relief under the pre-AEDPA (i.e., 1990) version of Section 212(c). See Ponnapula, 373 F.3d at 496 n.16 ("[T]he effect of our overall holding is likely to be small. First, the class of aliens affected by this ruling is constantly shrinking in size as the effective date of IIRIRA recedes into the past. Second, * * * many aliens who are within the scope of this holding will nonetheless be statutorily ineli gible for § 212(c) relief by reason of having served five years or more in prison. Third, many times more crimi nal defendants enter into plea agreements than go to trial.").

In any event, it would be premature for the Court to decide whether St. Cyr's holding applies to aliens con victed of an aggravated felony after 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 after trial. In its response to comments received on its proposed rule, the Department noted cases hold ing that "an alien who is convicted after trial is not eligi ble 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 crimi nal trials[] and those convicted through plea agree ments." Id. at 57,828. That determination is reflected in the amended regulations, which took effect on Octo ber 28, 2004. See id. at 57,833 (8 C.F.R. 1003.44(a)) ("This section is not applicable with respect to any con viction entered 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. United States Att'y Gen., 452 F.3d 1204, 1207 (11th Cir. 2006) (per curiam), and this Court should not be one of the first to do so.

2. Petitioner also contends (Pet. 21-25, 27-30) that the denial of a hearing on his application for discretion ary relief under Section 212(c) violated due process. The court of appeals correctly held otherwise, and fur ther review is unwarranted.

As the Third Circuit has explained, "discretionary relief is necessarily a matter of grace rather than of right," and thus "aliens do not have a due process liberty interest in consideration for such relief." United States v. Torres, 383 F.3d 92, 104 (2004). At least seven courts of appeals have reached the same conclusion, including the Fifth Circuit, which so held in United States v. Lopez-Ortiz, 313 F.3d 225 (2002), cert. denied, 537 U.S. 1135 (2003), the decision on which it relied here (Pet. App. 2a); accord United States v. Wilson, 316 F.3d 506, 510 (4th Cir.), cert. denied, 538 U.S. 1025 (2003); Ali v. Ashcroft, 366 F.3d 407, 412 (6th Cir. 2004); Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004); Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir. 2005); United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004) (en banc); Oguejiofor v. Attorney Gen., 277 F.3d 1305, 1309 (11th Cir. 2002) (per curiam). Petitioner con tends (Pet. 21-25) that those decisions conflict with United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004), and United States v. Copeland, 376 F.3d 61 (2d Cir. 2004). If there is such a conflict, however, it is not implicated here.

Petitioner does not (and could not) contend that he has a freestanding due process right to have the IJ con sider a request for discretionary relief from removal independent of the right created by Section 212(c) of the INA. He contends that he has a statutory right-under Section 212(c) and St. Cyr-and that the statutory right creates a liberty or property interest protected by the Due Process Clause. See, e.g., Pet. 28 (arguing that "the threshold inquiry is whether [petitioner] has a 'life, lib erty, or property' interest sufficient to invoke due pro cess protections" and that, "at the moment of his convic tion, [petitioner] gained a protected interest in the right to seek § 212(c) relief") (emphasis omitted); see also Pet. C.A. Br. 33 (arguing that it was "[t]he impermissible retroactive application" of the 1996 amendments to the INA that violated due process). The question whether petitioner has a constitutionally protected interest in a hearing on his application for discretionary relief, how ever, has no relevance in this case. If petitioner has a statutory right to seek Section 212(c) relief, he is enti tled to a hearing on that application under governing procedures regardless of whether the right to a hearing can also be characterized as constitutional; and if he has no statutory right to seek Section 212(c) relief, there is no liberty or property interest that could be protected by the Due Process Clause.

In the cases on which petitioner relies, unlike in this one, there was no dispute that the alien had a statutory right to apply for relief under Section 212(c), because the alien was convicted by guilty plea before the 1996 amendments to the INA. See Copeland, 376 F.3d at 63; Ubaldo-Figueroa, 364 F.3d at 1046. The question whether the statutory right created an interest pro tected by the Due Process Clause was relevant in those cases because they were illegal-reentry prosecutions in which the alien collaterally challenged the removal order on the ground that he had been deprived of his right to seek Section 212(c) relief, and a collateral challenge is permitted only if, among other things, the entry of the order was "fundamentally unfair," 8 U.S.C. 1326(d)(3), a term that has been interpreted to mean that the alien's "due process rights were violated by defects in his un derlying deportation proceeding" (and that he suffered prejudice as a result), Ubaldo-Figueroa, 364 F.3d at 1048 (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.), cert. denied, 525 U.S. 849 (1998)). Because this case is on direct review, petitioner need only demonstrate a statutory entitlement to a hear ing on his application for discretionary relief; he need not demonstrate a constitutional entitlement as well. For that reason, the due process question raised in the petition is an academic one.

4. 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
BARRY J. PETTINATO
Attorneys

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. IV 2004).