Sidhu v. Gonzales - Opposition

No. 06-140

In the Supreme Court of the United States

SAMARJEET SIDHU, 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

QUESTION PRESENTED

As a result of the 1996 amendments to the Immi gration and Nationality Act, see Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, § 304(b), 110 Stat. 3009-597; Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1277, a remov able 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, based on principles of non-retro activity, held that the 1996 amendments did not 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 discretionary relief. The question presented is whether this Court's holding in St. Cyr applies to an alien convicted of an aggravated felony after trial.

In the Supreme Court of the United States

No. 06-140

SAMARJEET SIDHU, 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. 1-5) is not published in the Federal Reporter, but is reprinted in 179 Fed. Appx. 221. The opinion of the Board of Im migration Appeals (Pet. App. 6-8) and the decision of the immigration judge (Pet. App. 9-20) are unreported.

JURISDICTION

The court of appeals entered its judgment on April 27, 2006. The petition for a writ of certiorari was filed on July 26, 2006. The jurisdiction of this Court is in voked under 28 U.S.C. 1254(1).

STATEMENT

1. Former Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(c) (1994) (repealed Supp. II 1996), authorized a permanent resident alien with a lawful unrelinquished domicile of seven consecu tive years to apply for discretionary relief from deporta tion. See INS v. St. Cyr, 533 U.S. 289, 295 (2001). In the Immigration Act of 1990, Congress amended Section 212(c) to preclude from eligibility for discretionary relief any alien previously convicted of an aggravated felony who had served a prison term of at least five years. Pub. L. No. 101-649, § 511, 104 Stat. 5052. In the Anti terrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress amended Section 212(c) to preclude from eligibility for discretionary relief any alien previ ously convicted of certain types of offenses, including an aggravated felony, without regard to the amount of time spent in prison. See Pub. L. No. 104-132, § 440(d), 110 Stat. 1277.

Later in 1996, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Con gress repealed Section 212(c), see Pub. L. No. 104-208, Div. C, § 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 precludes from discretionary relief an alien who has been convicted of an aggravated felony. See 8 U.S.C. 1229b(a)(3). In St. Cyr, supra, 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 if, at the time of the plea agreement, the conviction would not have rendered the alien ineligible for relief under Section 212(c). 533 U.S. at 314-326.

2. Petitioner is a citizen of Canada. In 1984, he was admitted to the United States as a lawful permanent resident. In 1996, a jury found petitioner guilty of con spiracy to commit mail fraud; aiding and abetting mail fraud; and making material false, fictitious, and fraudu lent statements to federal investigators. Pet. App. 2-3, 21. He was sentenced to a term of imprisonment of 37 months. Id. at 30. In 1999, the government commenced removal proceedings against petitioner based on his con viction of an aggravated felony. Id. at 3; see 8 U.S.C. 1101(a)(43)(M)(i) (offense involving fraud or deceit with loss to the victim exceeding $10,000); 8 U.S.C. 1101(a)(43)(U) (conspiracy to commit aggravated fel ony); 8 U.S.C. 1227(a)(2)(A)(iii). In April 2001, the im migration judge (IJ) found petitioner removable as charged and ineligible for any relief from removal, and ordered petitioner removed to Canada. Pet. App. 28-40.

Petitioner appealed to the Board of Immigration Ap peals (BIA). While the appeal was pending, this Court issued its decision in St. Cyr. Petitioner then filed a sup plemental brief, in which he argued, based on St. Cyr, that he was eligible to seek discretionary relief from removal under former Section 212(c) because his aggra vated felony conviction predated the repeal of Section 212(c). The BIA dismissed the appeal and remanded the case to the IJ for consideration of petitioner's applica tion for discretionary relief under former Section 212(c). Pet. App. 21-27.

3. On remand, the IJ found that petitioner was eligi ble to seek discretionary relief under former Section 212(c), and, after a hearing, granted petitioner discre tionary relief. Pet. App. 9-20.1

The government appealed the IJ's decision, and the BIA sustained the government's appeal. Pet. App. 6-8. The BIA, relying on the decisions of a number of courts of appeals, concluded that St. Cyr is inapplicable to an alien whose aggravated felony conviction was pursuant to a trial rather than a guilty plea. Id. at 7. The BIA further explained that, under proposed regulations im plementing St. Cyr, the availability of relief under for mer Section 212(c) did not extend to an alien whose ag gravated felony conviction was pursuant to a trial. Id. at 7-8; see 8 C.F.R. 1003.44(a), 1212.3(h). The BIA there fore ordered petitioner removed to Canada. Pet. App. 8.

4. The court of appeals affirmed in an unpublished, per curiam opinion. Pet. App. 1-5. The court, relying on its previous decision in Hernandez-Castillo v. Moore, 436 F.3d 516 (5th Cir. 2006), held that St. Cyr does not apply to an alien whose aggravated felony conviction was pursuant to a trial rather than a guilty plea. Pet. App. 5. Accordingly, the court concluded, petitioner is ineligible for discretionary relief under former Section 212(c). Ibid.

ARGUMENT

Petitioner contends (Pet. 13-22) 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. He also argues (Pet. 15-16) that the court of appeals' decision conflicts with the Third Circuit's decision in Ponnapula v. Ashcroft, 373 F.3d 480 (2004). Those contentions lack merit and do not warrant review. This Court has denied other peti tions raising the same claim raised by petitioner, see Thom v. Gonzales, 126 S. Ct. 40 (2005); Stephens v. Ashcroft, 543 U.S. 1124 (2005); Reyes v. McElroy, 543 U.S. 1057 (2005), and there is no reason for a different result here.

1. In St. Cyr, this Court addressed the situation of aliens who pleaded guilty after Section 212(c) was amended in 1990 to render ineligible for relief any alien convicted of an aggravated felony who had served a prison term of at least five years. A plea agreement pro viding for a sentence of less than five years thus would have assured the alien's eligibility for relief under then- current law. See INS v. St. Cyr, 533 U.S. 289, 293, 321- 324 (2001). This Court placed considerable emphasis on the fact that "[p]lea agreements involve a quid pro quo," whereby, "[i]n exchange for some perceived benefit, de fendants waive several of their constitutional rights (in cluding the right to a trial) and grant the government numerous tangible benefits." Id. at 321-322 (internal quotation marks omitted). In light of "the frequency with which § 212(c) relief was granted in the years lead ing up to AEDPA and IIRIRA," the Court concluded 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 pro ceed 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 de ciding whether to forgo their right to a trial," the Court held that "the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect." Id. at 325.

St. Cyr therefore was grounded in the notion that, because aliens would have based their decision to plead guilty on the continued availability of discretionary re lief, the plea of guilty gave rise to a reasonable reliance interest and expectations in preserving eligibility for that relief. In short, as the Court recently observed in describing the reasoning of St. Cyr, the "possible discre tionary relief" was "a focus of expectation and reliance" in the decision to plead guilty as part of a "quid pro quo agreement." Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2432 & n.10 (2006) (citing St. Cyr, 533 U.S. at 323).

In Hernandez-Castillo v. Moore, 436 F.3d 516 (2006), petition for cert. pending, No. 05-1251 (filed Mar. 28, 2006), on which the court of appeals relied below, see Pet. App. 5, the Fifth 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." 436 F.3d at 520 (quoting Ran kine v. Reno, 319 F.3d 93, 99 (2d Cir.), cert. denied, 540 U.S. 910 (2003)). As the court explained, unlike an alien who pleaded guilty, an alien who went to trial did not "detrimentally change[] his position in reliance on con tinued eligibility for § 212(c) relief." Ibid. (quoting Ran kine, 319 F.3d at 99). An alien who pleaded guilty "would have participated in the quid pro quo relation ship in which a greater expectation of relief is provided in exchange for forgoing a trial," thus implicating "the reliance interest emphasized by [this] Court in St. Cyr." Ibid. (quoting Rankine, 319 F.3d at 99). Aliens who elected to go to trial, by contrast, "made no decision to abandon any rights and admit guilt-thereby immedi ately rendering themselves deportable-in reliance on the availability of the relief offered prior to IIRIRA." Id. at 520 n.3 (quoting Rankine, 319 F.3d at 99). Their decision to go to trial, "standing alone, had no impact on their immigration status," and "[u]nless and until they were convicted of their underlying crimes," they "could not be deported." Ibid. (quoting Rankine, 319 F.3d at 99). Such aliens, unlike aliens who pleaded guilty, there fore could make no "claim that they relied on the avail ability of § 212(c) relief in making the decision to go to trial." Ibid. (quoting Rankine, 319 F.3d at 99).

2. In addition to the Fifth Circuit below, six other courts of appeals have likewise 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); Rankine v. Reno, 319 F.3d 93 (2d Cir.), cert. denied, 540 U.S. 910 (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. Son chik, 291 F.3d 1116, 1121-1122 (9th Cir. 2002), cert. de nied, 539 U.S. 902 (2003); Brooks v. Ashcroft, 283 F.3d 1268, 1273-1274 (11th Cir. 2002).

a. Contrary to petitioner's argument (Pet. 15-16), those decisions do not conflict with the Third Circuit's decision in Ponnapula. While Ponnapula did address the question whether the 1996 amendments to the INA apply to aliens found guilty at trial before 1996, it did not hold that the amendments are inapplicable to any alien found guilty at trial. The Third Circuit framed the question to be decided 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 convicted prior to the effective date of IIRIRA's repeal of former § 212(c)" into (i) "aliens who went to trial because they declined a plea agreement that was offered to them," and (ii) "aliens who went to trial because they were not offered a plea agreement." Ibid. Because aliens in the latter category "had no op portunity 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) imper missibly retroactive as to them." Ibid. The Third Cir cuit ultimately held that "aliens * * * who affirma tively turned down a plea agreement had a reliance in terest in the potential availability of § 212(c) relief." Ibid.

Petitioner was convicted of an aggravated felony at 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. With respect to aliens who were convicted at trial before AEDPA and IIRIRA and who did not decline a plea agreement, there is no conflict between the decision below and Ponnapula on the ques tion whether application of those laws would be retroac tive.2

b. The court of appeals' decision also does not con flict with the Fourth Circuit's decision in Olatunji v. Ashcroft, 387 F.3d 383 (2004). See Pet. 17-18. That de cision did not address in any form the question pre sented here. Olatunji involved a different provision of IIRIRA, codified at 8 U.S.C. 1101(a)(13)(C)(v), that pro vides that a lawful permanent resident who travels out side 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 here was addressed by the Fourth Circuit in a different case, Chambers v. Reno, 307 F.3d 284 (2002), which held, consistent with the view of every other court of appeals to consider the question, that the amendments rendering aggravated felons ineligible for discretionary relief apply to an otherwise-eligible alien who was convicted after trial.

It is true, as petitioner observes (Pet. 18), that, in ruling for the alien in Olatunji, the Fourth Circuit rea soned that the fact that the provision of IIRIRA in ques tion "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. But Olatunji did not purport to overrule Chambers. Indeed, Olatunji explicitly distinguished Chambers on the ground that the provision of IIRIRA at issue there (and here) "did not attach new consequences to [the alien's] 'relevant past conduct,' namely his decision to go to trial." Id. at 392 (quoting Chambers, 307 F.3d at 293). Even under the reasoning employed in Olatunji, there fore, the amendments to the INA limiting the availabil ity of relief from removal are applicable to aliens, like petitioner, who were convicted of an aggravated felony after trial.

c. Finally, the court of appeals' decision does not conflict with the Second Circuit's decision in Restrepo v. McElroy, 369 F.3d 627 (2004). See Pet. 17. The Second Circuit held in that case that the repeal of Section 212(c) relief does not apply to an alien who decided to forgo an opportunity to apply "affirmatively" for Section 212(c) relief-i.e., after his criminal conviction but before being placed in deportation proceedings-in the hope that he could build a stronger case for relief. See Restrepo, 369 F.3d at 632-635. That decision does not assist petitioner because he has not suggested that he decided to forgo affirmatively applying for Section 212(c) relief before he was placed in removal proceedings. See Thom v. Ashcroft, 369 F.3d 158, 163 (2d Cir. 2004) (Restrepo does not apply to an alien who was convicted of an aggravated felony after a trial rather than through a guilty plea and who "does not claim any other basis for * * * a reli ance or expectation"), cert. denied, 126 S. Ct. 40 (2005).

Moreover, the Second Circuit in Restrepo distin guished and reaffirmed its decision in Rankine, supra, which held that St. Cyr did not apply to an alien con victed of an aggravated felony after a trial rather than through a guilty plea because such an alien could make no comparable claim of reliance in the decision to go to trial. See Restrepo, 369 F.3d at 636-637. The court of appeals below adhered to its previous decision in Hernandez-Castillo, which in turn relied heavily on the Second Circuit's decision in Rankine. See Hernandez- Castillo, 436 F.3d at 520; pp. 6-7, supra. The Second Circuit therefore would resolve petitioner's claim in the same manner as the court of appeals below.3

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

SEPTEMBER 2006

1 The IJ concluded that, although petitioner's conviction postdated AEDPA, his offense did not qualify as an aggravated felony until IIRIRA later amended the definition of aggravated felony so as to reduce the minimum amount of loss for an offense involving fraud or deceit from $200,000 to $10,000. See Pet. App. 11, 13; 8 U.S.C. 1101(a)(43)(M)(i); IIRIRA § 321(a)(7), 110 Stat. 3009-628.

2 Although petitioner observes (Pet. 12) that he argued below that "he could well have relied upon the existence of § 212(c) in electing not to enter into a plea bargain," petitioner has made no contention, either in the proceedings below or in the petition, that he was offered a plea agreement or that he declined to enter into a plea agreement. Rather, petitioner has hypothesized only that "a plea agreement could likely have been arranged." Pet. C.A. Br. 46. The alien in Ponnapula, by contrast, had been offered and had declined a plea agreement based on advice that, if he were convicted at trial, he likely would be sentenced to less than five years and thus would remain qualified for relief under former Section 212(c). See Ponnapula, 373 F.3d at 484. The Pon napula court accordingly limited its holding to aliens "who affirma tively turned down a plea agreement," id. at 494, and petitioner does not suggest that he fits in that category.

3 The Tenth Circuit's decision in Hem v. Maurer, 458 F.3d 1185 (2006), which was issued after the petition was filed in this case, does not assist petitioner. In that case, the court held, based on principles of non-retroactivity, that IIRIRA's repeal of Section 212(c) does not apply to an alien "who proceeds to trial but forgoes his right to appeal when § 212(c) relief was potentially available." Id. at 1187. The court reasoned that an alien might decide to forgo an appeal if a successful appeal could ultimately result in imposition of a sentence of more than five years, such that the alien would thereby be deprived of eligibility for relief under former Section 212(c). Id. at 1200-1201. Petitioner is not aided by the decision in Hem because he did not forgo an appeal, but instead appealed his conviction. See United States v. Sidhu, 130 F.3d 644 (5th Cir. 1997).