Zamora v. Mukasey - Opposition

No. 07-820

In the Supreme Court of the United States

FRANCISCO C. ZAMORA, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting 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, aliens convicted of certain offenses were made statutorily ineligible for a discretionary waiver of deportation under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c) (1994). 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 aggra vated felony on the basis of a plea agreement made at a time when the conviction would not have rendered the alien ineligible for discretionary relief. The question presented is:

Whether, in light of St. Cyr, it is impermissibly retro active to apply the 1996 repeal of Section 212(c) to an ali en who was convicted of a disqualifying offense after a trial and who does not claim to have relied in any way on the potential availability of discretionary relief under Section 212(c).

In the Supreme Court of the United States

No. 07-820

FRANCISCO C. ZAMORA, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1-8) is not published in the Federal Reporter but is reprinted in 240 Fed. Appx. 150. The amended order of the Board of Immigration Appeals (Pet. Supp. App. 1-5) and the oral decision of the immigration judge (App., infra, 1a-4a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 16, 2007. The petition for a writ of certiorari was filed on October 15, 2007 (Monday). The jurisdiction of this Court is invoked 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 Former Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(c) (1994) (repealed 1996), authorized a permanent resident alien domiciled in the United States for seven consecutive years to apply for discretionary relief from being excluded from the country. By its terms, Section 212(c) "was literally ap plicable only to exclusion proceedings," but it was con strued as applying to deportation proceedings as well. INS v. St. Cyr, 533 U.S. 289, 295 (2001).

In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress amended Section 212(c) to make ineligible for discretionary relief any alien pre viously convicted of certain offenses, including aggra vated felonies. See Pub. L. No. 104-132, § 440(d), 110 Stat. 1277. Later that year, in the Illegal Immigra tion Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress repealed Section 212(c) altogether, see Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-597, and replaced it with Section 240A of the INA, 8 U.S.C. 1229b, which provides for a more-limited form of discre tionary relief known as cancellation of removal. Like Section 212(c) as amended by AEDPA, Section 240A makes ineligible for discretionary relief aliens who have been convicted of aggravated felonies. 8 U.S.C. 1229b(a)(3). It also requires an alien who is a lawful permanent resident seeking such discretionary relief to have "resided in the United States continuously for 7 years after having been admitted in any status," 8 U.S.C. 1229b(a)(2), and it cuts off that period of "continuous residence" whenever the alien commits, inter alia, a crime involving moral turpitude. 8 U.S.C. 1229b(d)(1)(B) (Supp. V 2005).

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 on the basis of an agreement to plead guilty that was made at a time when the resulting conviction 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 who entered the United States as a lawful permanent resi dent of the United States in 1985. Pet. App. 2. In 1990, he pleaded guilty to, and was convicted of, possessing a stolen motor vehicle. Pet. App. 2; Pet. C.A. Br. 3. In 1995 he was convicted of possession of cocaine, after pleading not guilty and going to trial. Pet. App. 2-3. In November 2001, the Immigration and Naturalization Service (INS) commenced removal proceedings against him after he attempted to re-enter the United States after a trip to Mexico.1 It alleged that petitioner was removable because the first offense was a crime involv ing moral turpitude and the second was a controlled- substance offense. Ibid. 2-3; App., infra, 2a; see 8 U.S.C. 1182(a)(2)(A)(i)(I) and (II).

At petitioner's removal hearing, the immigration judge (IJ) found petitioner removable on both of the charged grounds. App., infra, 3a. Petitioner sought discretionary relief from removal under Section 212(c).2 The IJ ruled that Section 212(c) relief is unavailable to an alien convicted before the 1996 amendments if the alien was convicted at trial. Because petitioner did not plead guilty to the 1995 cocaine charge, the IJ found that his application for Section 212(c) relief was preter mitted and ordered him removed to Mexico. Pet. App. 2-3; App., infra, 3a.

Petitioner appealed to the Board of Immigration Ap peals (BIA), contesting, inter alia, his ineligibility for Section 212(c) relief. The BIA issued a decision on May 16, 2006, and then issued amended decisions on May 24 and 25, 2006. Pet. Supp. App. 2, 5 n.1. The BIA deter mined that, because petitioner's controlled-substance conviction did not result from a guilty plea, petitioner is ineligible for Section 212(c) relief, and "there is nothing in [St. Cyr] which indicates that its reasoning applies to aliens who failed to enter a plea of guilty or nolo conten dere." Id. at 4. In support of its conclusion, the BIA cited decisions from the Seventh Circuit and other courts of appeals. Id. at 4-5.

3. Petitioner then filed a petition for review of the BIA's decision with the United States Court of Appeals for the Seventh Circuit. Pet. App. 2. In the court of ap peals, petitioner explained that, "[a]lthough it was never discussed in the proceedings below," he is "not eligible for relief under the current law of cancellation of re moval at § 240A" because his 1990 conviction for an of fense involving moral turpitude precludes him from es tablishing the seven years of continuous residence re quired for discretionary relief by 8 U.S.C. 1229b(a)(2). Pet. C.A. Br. 3-4; see also 8 U.S.C. 1229b(d)(1)(B) (Supp. V 2005) (terminating "period of continuous presence" upon alien's commission of certain offenses).3

Although petitioner claimed that his 1990 conviction bars him from receiving a discretionary grant of cancel lation of removal under current law, his argument in the court of appeals-like his retroactivity argument before the IJ and the BIA-was necessarily focused on IIRIRA's retroactive effect in repealing former Section 212(c) vis-à-vis his 1995 conviction, which had followed a trial rather than a guilty plea. Pet. App. 3; Pet. C.A. Br. 7-10. Thus, petitioner argued that St. Cyr does not require him to demonstrate reliance on Section 212(c). Pet. App. 3.

4. The court of appeals denied the petition for re view. Pet. App. 1-8. It rejected petitioner's argument that St. Cyr does not require any showing of reliance. It described this Court's analysis in St. Cyr as being based upon: (1) the retroactive effect that followed from the "'almost certain[]'" reliance by those pleading guilty up on the likelihood of receiving Section 212(c) relief in de ciding to forgo their right to a trial; and (2) "the quid pro quo involved in plea agreements," whereby those pleading guilty gave up their right to a trial and the gov ernment benefitted. Pet. App. 5 (quoting St. Cyr, 533 U.S. at 325). The court also noted that its own prece dent had already "foreclosed the possibility of § 212(c) relief for an alien who did not plead guilty to an aggra vated felony prior to IIRIRA, reasoning that he 'did not abandon any rights or admit guilt in reliance on contin ued eligibility for § 212(c) relief.'" Ibid. (quoting Mon tenegro v. Ashcroft, 355 F.3d 1035, 1036-1037 (7th Cir. 2004)).

The court of appeals observed that "the vast majority of [other] circuits" agreed with its view. Pet. App. 5-6. It did, however, note three courts that contemplate a showing of reliance from something other than a guilty plea in certain circumstances: Restrepo v. McElroy, 369 F.3d 627, 634-635 (2d Cir. 2004) (aliens can demonstrate reliance, despite pleading not guilty, by showing they delayed applying for Section 212(c) relief to "build a stronger case of rehabilitation"); Ponnapula v. Ashcroft, 373 F.3d 480, 494 (3d Cir. 2004) (aliens going to trial may show reliance if they turn down a plea agreement); and Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir. 2006) (because of "objectively reasonable reliance on prior law," the repeal of Section 212(c) does not apply to aliens who contest an aggravated felony charge but forgo their right to appeal). Pet. App. 6. After observing that peti tioner did not argue that he could show any of those forms of reliance, the court stated that "[o]nly the Fourth Circuit" had accepted petitioner's view and "wholly foresworn a reliance requirement." Id. at 7 (cit ing Olatunji v. Ashcroft, 387 F.3d 383, 396 (4th Cir. 2004)). Finally, the court concluded that petitioner's formulation would allow "all aliens convicted of crimes prior to IIRIRA" to remain eligible for relief, and thus render moot "virtually all of [this Court's] analysis in St. Cyr." Id. at 7-8. Accordingly, it affirmed the BIA's de nial of relief and denied the petition for review. Id. at 8.

ARGUMENT

Petitioner contends (at 11-18) that INS v. St. Cyr, 533 U.S. 289 (2001), has been misinterpreted by the ma jority of the courts of appeals and that it does not re quire any showing of reliance as the basis for a finding of impermissibly retroactive effect. His case, however, does not squarely present that question, because the conviction that precludes him from seeking discretion ary relief from removal after the 1996 repeal of Section 212(c)-i.e., the discretionary relief of cancellation of removal under Section 240A, 8 U.S.C. 1229b, which re placed former Section 212(c)-is not his 1995 conviction for cocaine possession (which was not an aggravated felony, see note 3, supra), but rather his 1990 conviction for a crime involving moral turpitude (which petitioner conceded below prevents him from accruing the neces sary period of continuous physical presence, see p. 4, supra). Because petitioner's submission in this Court is based on the asserted application of IIRIRA to his 1995 conviction, the petition should be denied on this ground alone.

Moreover, even assuming that petitioner's request for relief turns on the extent to which reliance matters to retroactivity analysis, the unpublished decision of the court of appeals correctly rejected petitioner's claims, and this Court has already denied petitions urging a similar extension of St. Cyr in at least four prior cases. See Hernandez-Castillo v. Gonzales, 127 S. Ct. 40 (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). The application of Section 212(c) is of diminishing prospective significance.

1. The question presented turns on the interaction between this Court's decision about retroactivity in St. Cyr and petitioner's decision to "exercise[] his right to trial in a criminal case in 1995" by choosing not to "en ter[] a plea of guilty." Pet. ii. But petitioner's 1995 con viction at trial for possessing cocaine is not what pre cludes him from being eligible for the discretionary re lief from removal that he seeks. As petitioner concedes, he is "ineligible for cancellation of removal" under cur rent law (Section 240A(a) of the INA, 8 U.S.C. 1229b(a)), "because his 1990 offense [for possessing a stolen car] * * * break[s] the" seven-year period of continuous residence necessary to be eligible for such relief. Pet. 2 (emphasis added); see also Pet. App. 4-5. Petitioner noted in the court of appeals that he pleaded guilty to the 1990 offense. Pet. C.A. Br. 3. Thus, notwithstanding the focus of the court of appeals, which followed the fo cus of the arguments in petitioner's petition for review of the BIA's decision, this case does not present the op portunity to address the decisions of a majority of the courts of appeals to "den[y] relief" under Section 212(c) "absent a plea of guilty." Pet. 11.

Moreover, the analysis necessary to determine IIRIRA's retroactive effect on petitioner's 1990 guilty plea would differ from that employed by the decisions that petitioner describes as disagreeing about the retro active effect of the repeal of Section 212(c). That analy sis would depend on whether the provision stopping the period of continuous residence upon the commission of certain crimes, 8 U.S.C. 1229b(d)(1)(B) (Supp. V 2005), known as the "stop-time rule," applies retroactively to petitioner's 1990 conviction. As the First Circuit ex plained at length in Peralta v. Gonzales, 441 F.3d 23, 26- 28 (2006), the transitional provisions in Section 309(c)(5) of IIRIRA, 110 Stat. 3009-627, as amended by the Nica raguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, § 203(a), 111 Stat. 2196, applied the stop-time rule to immigration proceedings that began "before, on, or after the date of enactment" of IIRIRA. Peralta thus held that "Congress has expressly man dated that [the stop-time rule] be applied retroactively" to crimes that occurred before 1996. 441 F.3d at 30; see also Okeke v. Gonzales, 407 F.3d 585, 588 (3d Cir. 2005) (applying stop-time rule to conviction from 1983 without discussing retroactivity). The Fifth Circuit has ex pressly extended that analysis to immigration proceed ings (like petitioner's) that "do not fall under [IIRIRA's] transitional rule" because they were "commenced after" IIRIRA became fully effective in 1997. Heaven v. Gon zales, 473 F.3d 167, 174-176 (2006); but see Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1201 (9th Cir. 2006) (holding that "the permanent stop-clock rule contained in part B of § 1229b(d)(1) is ambiguous * * * with respect to its retroactive application to a conviction obtained pursuant to a guilty plea").

As even this cursory overview shows, determining whether IIRIRA retroactively forbids petitioner from being eligible for discretionary relief from removal in volves several considerations that were neither pressed nor passed upon in the court of appeals, because peti tioner conceded below that his 1990 conviction rendered him ineligible for cancellation of removal and has in stead focused on his 1995 conviction, which did not ren der him ineligible for cancellation of removal. The peti tion should be denied on this ground alone.

2. a. Even assuming that this case properly turns on the retroactive effect of the bare repeal of Section 212(c), the court of appeals' decision is correct. In St. Cyr, this Court placed considerable emphasis on the fact that "[p]lea agreements involve a quid pro quo," where by, "[i]n exchange for some perceived benefit, defen dants waive several of their constitutional rights (includ ing the right to a trial) and grant the government nu merous 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 possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial." Id. at 323. And because, in the Court's view, aliens in St. Cyr's position "almost cer tainly 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 elimination of any possi bility 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 relies (at 11-16) on a series of retroac tivity cases: Landgraf v. USI Film Products, 511 U.S. 244 (1994), Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997), Martin v. Hadix, 527 U.S. 343 (1999), Republic of Austria v. Altmann, 541 U.S. 677 (2004), and Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422 (2006). The last of those decisions, however, explic itly discussed St. Cyr and confirmed the importance of reliance in the Court's analysis. The Court stated that in St. Cyr "we emphasized that plea agreements involve a quid pro quo * * * in which a waiver of constitutional rights * * * had been exchanged for a perceived bene fit * * * valued in light of the possible discretionary relief, a focus of expectation and reliance." Id. at 2431- 2432 (internal quotation marks omitted). Distinguishing the situation of Fernandez-Vargas from that of St. Cyr, the Court remarked that, "before IIRIRA's effective date Fernandez-Vargas never availed himself of [provi sions 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 2432 n.10. Similarly, as petitioner himself concedes (at 13-14), "the consideration [of reliance] was clearly important to [the Court's] deliberations" in Martin, and reliance was discussed in Altmann.

b. As petitioner acknowledges (at 11), the Seventh Circuit is not the only court of appeals that has declined to extend the holding of St. Cyr generally to aliens con victed at trial, precisely because of St. Cyr's emphasis on the showing of reliance provided by a guilty plea. At least six others have done so as well.4 See Hem v. Mau rer, 458 F.3d 1185, 1189 (10th Cir. 2006); Hernandez- Castillo v. Moore, 436 F.3d 516, 520 (5th Cir.), cert. de nied, 127 S. Ct. 40 (2006); Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.), cert. denied, 540 U.S. 910 (2003); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002), cert. denied, 539 U.S. 926 (2003); Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002);5 Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-1122 (9th Cir. 2002), cert. denied, 539 U.S. 902 (2003) (citing United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000)).6

3. In addition, the conflict among the circuits on the general question of whether reliance is necessary to show a retroactive effect is narrower than petitioner claims. Petitioner points (at 8-10) to two cases holding that reliance is not necessary to show a retroactive ef fect. But the Fourth Circuit's decision in Olatunji, al though mentioned by the court below (Pet. App. 7), does not conflict with the decision below. The retroactivity issue in Olatunji involved the loss of an alien's ability to take brief trips abroad without subjecting himself to removal proceedings, 387 F.3d at 396, rather than loss of access to Section 212(c) relief. In fact, Olatunji itself distinguished the Fourth Circuit's prior decision in Chambers, which did involve Section 212(c). See 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-continued to hold that "IIRIRA's repeal of § 212(c) did not produce an impermissibly retroactive effect as applied to an alien convicted after trial." Mbea v. Gonzales, 482 F.3d 276, 281-282 (2007).

Nevertheless, the Third Circuit's decision in Atkin son v. Attorney General, 479 F.3d 222 (2007), does con flict with the decisions discussed above. Atkinson dealt with whether an alien who had not been offered a plea bargain (unlike the alien in the Third Circuit's prior de cision in Ponnapula) and who had been convicted of an aggravated felony at a pre-IIRIRA trial was eligible for Section 212(c) relief. Id. at 229-230. The Third Circuit, holding that a showing of reliance was not required, stated that it was "not troubled by [its] dictum in Pon napula casting doubt on whether an alien in Atkinson's situation could demonstrate a reasonable reliance inter est necessary to demonstrate a retroactive effect." Id. at 231. The court found that IIRIRA attached new legal consequences to the alien's conviction and resulting sen tence such that the BIA could not preclude Section 212(c) relief "because IIRIRA's repeal of that section cannot be applied retroactively." Ibid.

4. Quite aside from the fact that seven circuits have reached a result contrary to Atkinson, further review would not be warranted for two additional reasons- even if, contrary to our submission on point 1, supra, this case properly presented the issue. First, the ques tion presented in the petition necessarily has diminish ing prospective significance, because it affects only re moval proceedings for aliens convicted at trials before IIRIRA was enacted in 1996.

Second, it would in any event be premature for this 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 barring Section 212(c) relief apply to aliens who were convicted 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) re lief under St. Cyr," and then stated that it "has deter mined to retain the distinction between ineligible aliens who were convicted after criminal trials[] and those con victed through plea agreements." Id. at 57,828. That determination was reflected in the amended regulations, which took effect on October 28, 2004. See id. at 57,833- 57,835; 8 C.F.R. 1212.3(h) (2007) ("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 regula tions 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 (11th Cir. 2006), and Atkinson itself did not reflect consideration of them. Even if the issue might otherwise warrant review by this Court at some point, review would be premature until the effect of the regulations has been further considered by the courts of appeals.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
DONALD E. KEENER
ALISON R. DRUCKER
Attorneys

MARCH 2008

1 The INS's immigration-enforcement functions have since been transferred to the Department of Homeland Security. See 6 U.S.C. 251 (Supp. V 2005).

2 Petitioner did not apply for cancellation of removal under Section 240A. Pet. App. 5; Pet. 2.

3 Before the IJ and the BIA, the parties apparently assumed that the 1995 conviction for possession of cocaine was an "aggravated felony" that precluded cancellation of removal by virtue of 8 U.S.C. 1229b(a)(3). After petitioner filed his petition for review in the court of appeals, but before he filed his supporting brief, this Court held that a state con viction for mere possession of an amount of cocaine too small to distrib ute did not constitute an "aggravated felony" under the INA, see Lopez v. Gonzales, 127 S. Ct. 625 (2006). Petitioner thus claimed in the court of appeals that he was not ineligible for Section 240A relief on the basis of any aggravated felony, Pet. C.A. Br. 3 & n.1, and the government did not dispute that conclusion, Pet. App. 4.

4 Petitioner identifies (at 8) Patel v. Ashcroft, 401 F.3d 400 (6th Cir. 2005), as a case "refusing to permit § 212(c) relief to any aliens except those who, prior to IIRIRA, entered pleas of guilty." But, after deter mining that Patel was an aggravated felon, the Sixth Circuit dismissed the case for lack of jurisdiction, and did not reach the Section 212(c) is sue. See id. at 402, 407, 411.

5 In Chambers, the Fourth Circuit affirmed the BIA's denial of eligibility for Section 212(c) relief to an alien convicted pre-IIRIRA of an aggravated felony after trial. 307 F.3d at 287, 293. The court held that his "reliance interests" were not the same as those of an alien like St. Cyr who had pleaded guilty. Id. at 290-292. The court further sta ted that "an alien's failure to demonstrate reliance on pre-IIRIRA law might not foreclose" a retroactivity claim. Id. at 293. It determined, however, that, "[e]ven if that is so," IIRIRA's repeal did not change the impact of his "decision to go to trial on his immigration status" and therefore did not have an improper retroactive effect on him. Ibid.

6 As the Seventh Circuit observed, some of the courts requiring rel iance have found that it can be demonstrated by circumstances other than a guilty plea. Petitioner gives (at 17-18) further examples of such cases. See Hernandez de Anderson v. Gonzales, 497 F.3d 927, 942-944 (9th Cir. 2007) (retroactivity found where lawful permanent resident who applied for naturalization 18 months prior to IIRIRA reasonably relied on access to suspension relief); Carranza-De Salinas v. Gon zales, 477 F.3d 200, 210 (5th Cir. 2007) (if alien can demonstrate on remand that she "affirmatively decided to postpone" applying for Section 212(c) relief to increase the likelihood of getting it, she would establish a reasonable "reliance interest" sufficient to show improper retroactivity); Wilson v. Gonzales, 471 F.3d 111, 122 (2d Cir. 2006) (same). After the petition for a writ of certiorari was filed, the Second Circuit further clarified its view, explaining that "an alien can never [hope to] make the showing of detrimental reliance that Wil son requires if he did not actually apply for § 212(c) relief before he became ineligible pursuant to the statute under which he seeks to have his eligibility evaluated." Singh v. Mukasey, No. 07-1688-ag, 2008 WL 658239, at *5 (Mar. 13, 2008).

APPENDIX

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Chicago, Illinois

File No.: A 38 884 655

IN THE MATTER OF: FRANCISCO ZAMORA

Filed: Apr. 5, 2005

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: Royal F. Berg
ON BEHALF OF DHS: Joseph M. Yeung

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico, who applied for admission into the United States on July 24, 2001, at Chicago's O'Hare International Airport by pre senting a resident alien card in his name. The respon dent's inspection was deferred based upon some crimin al matters reflected in his record.

[Specifically,] on December 27, 1990, the respondent had been convicted in the State of Illinois, Circuit Court of Cook County, for possession of a stolen motor vehicle and had been sentenced to 24 months probation. On August 14, 1994, the respondent had been convicted in

the State of Illinois, Circuit Court of Cook County, for possession of a controlled substance, and had been sentenced to 24 months probation. The respondent was deemed inadmissible and a Notice to Appear was issued against [him] dated November 15, 2001 (Exhibit 1) charging him with removability under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, as an alien convicted of a crime involving moral turpitude, and under Section 212(a)(2)(A)(i)(II) of the Act, in that he is an alien who has been convicted of an offense constituting a controlled substance offense.

The respondent, through his attorney, denied all the allegations contained in the Notice to Appear, on March 21, 2003, and subsequently submitted a motion to this Court, which has been entered into the record as Exhibit 6, seeking among other things the suppression of certain documentation submitted by the Government, as well as termination and for this Court's recusal. Rather than is sue a hasty oral decision, this Court prepared a lengthy written decision, which has been entered into the record as Exhibit 7, addressing in detail the respondent's mo tions, basically denying them and I incorporate herein, by reference, the written decision dated March 25, 2005, addressing each of the respondent's arguments.

The respondent, in Exhibit 7, was ordered to present to this Court any [application for] relief from removal that he might be eligible for, at his hearing scheduled on April 5, 2005. On said date, the respondent submitted to the Court an application for advance permission to re turn to unrelinquished domicile on Form I-191. This document has been entered into the record as Exhibit No. 8. However, this Court determines that the respon dent is statutorily ineligible for a waiver under Section 212(c) of the Immigration and Nationality Act, in that the conviction record, found at Exhibit 3, shows that the respondent had pled not guilty on February 8, 1995, to possession of a controlled substance, and that the res pondent then had been in fact convicted and sentenced to probation and other conditions on April 11, 1995.

The respondent has objected to the admission into the record of this conviction [record] from the Circuit Court of Cook County, Illinois, however, my decision ad mitting it into the record has been addressed in my [pri or] written decision, which is found at Exhibit 7. Having found that the respondent did not plead guilty, he can not avail himself of the Supreme Court decision in St. Cyr v. INS, citation omitted, [ruling] that someone who had pled guilty based on a belief that he might be elig ible for a waiver under Section 212(c) of the Act might still be able to seek a waiver before the Immigration Courts to date. Having found that the respondent did not enter a plea of guilty but rather proceeded on a plea of not guilty, and allowed the [Criminal] Court to make its ultimate finding of guilty, he cannot seek 212(c) relief to date, under the Supreme Court's holding in St. Cyr.

Therefore, I must pretermit the respondent's appli cation found at Exhibit 8, and there being no other av enue of relief available to the respondent I hereby order the respondent removed to Mexico on the charges con tained in the Notice to Appear, and on the basis stated above, as well as in my written decision, which has been incorporated herein.

/S/ JENNIE L. GIAMBASTIANI *
JENNIE L. GIAMBASTIANI
United States Immigration Judge

[* Pen and ink corrections made by Immigration Judge and relate to transcriber errors.]