15-27-ag
Nuñez Peña v. Lynch




                              In the
            United States Court of Appeals
                      For the Second Circuit
                              ________
                         AUGUST TERM 2015
                           No. 15-27-ag

 DOMINGO SANTIAGO NUÑEZ PEÑA, AKA DOMINGO S. NUÑEZ, AKA
 DOMINGO NUÑEZ, AKA MINGO NUÑEZ, AKA DOMINGO SANTIAGO
MUÑEZ, AKA DOMINGO S. MUÑEZ, AKA DOMINGO SANTIAGO NUÑEZ,
                        Petitioner,

                                 v.

        LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,
                            Respondent.
                             ________

    Petition for Review of a Decision of the Board of Immigration
                               Appeals
                               ________

                        ARGUED: MAY 13, 2016
                        DECIDED: MAY 20, 2016
                              ________

Before: CABRANES, STRAUB, and LOHIER, Circuit Judges.
                            ________
      Petitioner Domingo Santiago Nuñez Peña, a native and citizen
of the Dominican Republic, seeks review of a December 16, 2014
decision of the Board of Immigration Appeals affirming a September
2, 2014 decision of an Immigration Judge denying his applications
for a waiver of deportation under former Immigration and
Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), and
cancellation of removal under current INA § 240A(a), 8 U.S.C.
§ 1229b(a). Nuñez Peña acknowledges that our decision in Peralta-
Taveras v. Attorney General, 488 F.3d 580 (2d Cir. 2007), appears to
preclude him from obtaining relief, but argues that Peralta-Taveras
did not survive the Supreme Court’s decision in Vartelas v. Holder,
132 S. Ct. 1479 (2012). Finding nothing in Vartelas that casts doubt
on the continuing validity of Peralta-Taveras, we DENY the petition
for review.
                             ________

                  MATTHEW K. BOROWSKI, Law Office of Matthew
                  Borowski, Buffalo, NY, for Petitioner.

                  SARA J. BAYRAM, Trial Attorney (Benjamin C.
                  Mizer, Principal Deputy Assistant Attorney
                  General, and Leslie McKay, Assistant Director,
                  Office of Immigration Litigation, on the brief), U.S.
                  Department      of   Justice,   Civil     Division,
                  Washington, D.C., for Respondent.
                              ________




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JOSÉ A. CABRANES, Circuit Judge:

      Petitioner Domingo Santiago Nuñez Peña (“Nuñez Peña”), a
native and citizen of the Dominican Republic, seeks review of a
December 16, 2014 decision of the Board of Immigration Appeals
(“BIA”) affirming a September 2, 2014 decision of an Immigration
Judge (“IJ”) denying his applications for a waiver of deportation
under former Immigration and Nationality Act (“INA”) § 212(c), 8
U.S.C. § 1182(c) (repealed 1996), and cancellation of removal under
current INA § 240A(a), 8 U.S.C. § 1229b(a).           See In re Domingo
Santiago Nuñez Peña, No. A014 818 653 (B.I.A. Dec. 16, 2014), aff’g No.
A014 818 653 (Immig. Ct. Buffalo Sept. 2, 2014). Nuñez Peña was
ordered    removed    on   the   basis   of   three   aggravated-felony
convictions dating from 1991 and four controlled-substance
convictions dating from 1997, 1999, and 2011; our review is therefore
limited to constitutional claims and questions of law. See 8 U.S.C. §
1252(a)(2)(C), (D). Nuñez Peña’s submission raises questions of law,
see Centurion v. Holder, 755 F.3d 115, 118 (2d Cir. 2014); Richmond v.
Holder, 714 F.3d 725, 728 (2d Cir. 2013), but we resolve none of them
in his favor.

      To avoid removal, Nuñez Peña requires two forms of relief.
As of 1991, when he was convicted of three aggravated felonies, “the
Attorney General was authorized to grant discretionary relief from
exclusion or deportation under former § 212(c) of the INA.” Peralta-
Taveras, 488 F.3d at 583. With the passage of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
§ 212(c) was repealed and effectively replaced with § 240A(a), which




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empowers the Attorney General to “cancel removal . . . of an alien
who is inadmissible or deportable . . . if the alien” has (1) been
“lawfully admitted for permanent residence for not less than 5
years,” (2) “resided in the United States continuously for 7 years
after having been admitted in any status,” and (3) never “been
convicted of any aggravated felony.” 8 U.S.C. § 1229b(a).

      Under INS v. St. Cyr, a case decided on the basis of the
presumption against retroactivity, Nuñez Peña remains eligible for
§ 212(c) relief with respect to his 1991 convictions to the extent that
such relief was available to him at the time he entered his guilty
pleas. See 533 U.S. 289, 326 (2001). But Nuñez Peña’s 1997, 1999, and
2011 convictions occurred after the enactment of IIRIRA; as a result,
relief from the consequences of those convictions must be had, if at
all, under § 240A(a).       See Peralta-Taveras, 488 F.3d at 583.
Accordingly,    Nuñez    Peña    may     avoid   removal     only   by
demonstrating that he is entitled to relief under both § 212(c) and
§ 240A(a).

      As is made clear in our decision in Peralta-Taveras, two
independent barriers stand in his way. First, “[t]he text of § 240A(a)
is clear and unambiguous—cancellation of removal is not available
to aliens who have been convicted of an aggravated felony.” Id. at
584. This bar would prevent Nuñez Peña from securing cancellation
of removal even if he were to obtain a § 212(c) waiver, because the
granting of such a waiver “does not expunge the underlying offense
or its categorization as an aggravated felony.” Id. Second, “Section
240A(c)(6) [of the INA] expressly precludes cancellation of removal




                                  4
for aliens who have previously received relief under § 212(c),” a
prohibition that applies “whether or not the applications [under
each provision] are simultaneous.” Id. at 585. On two fronts, then,
Nuñez Peña’s petition fails under our case law.

      Recognizing as much, Nuñez Peña argues that Peralta-Taveras
did not survive the Supreme Court’s 2012 decision in Vartelas.
Vartelas, like St. Cyr, was a retroactivity case.         It concerned a
petitioner who had, prior to the enactment of IIRIRA, pleaded guilty
to a counterfeiting offense. See Vartelas, 132 S. Ct. at 1485. Before
IIRIRA, this conviction did not affect the petitioner’s ability to make
a brief trip outside the United States, because—under the Supreme
Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449, 461–62 (1963)—a
lawful permanent resident’s return from such a trip did not qualify
as “entry” into this country. See Vartelas, 132 S. Ct. at 1484. But
IIRIRA superseded Fleuti by subjecting one returning from a jaunt
abroad to “admission” procedures and, with them, potential
removal from the United States on the ground of inadmissibility.
See id. at 1484–85. In Vartelas, the Court concluded that, if applied to
the petitioner, IIRIRA’s “admission” provision—by attaching a new
disability, in the form of an effective bar on foreign travel, to his pre-
IIRIRA conviction—would operate with retroactive effect. See id. at
1486–88.   Congress having failed to make clear that it desired
retroactive application of the provision in question, the Court held
that it applied only prospectively. See id. at 1491–92.

      Relying on Vartelas, Nuñez Peña argues that § 240A(a)’s bar
on eligibility for aggravated felons would operate retroactively if




                                    5
applied to preclude cancellation of removal for a person (like him)
convicted of an aggravated felony prior to IIRIRA’s enactment. We
are not convinced.

       Nuñez Peña’s attempt to liken his post-IIRIRA convictions to
the post-IIRIRA conduct at issue in Vartelas (i.e., taking a short trip
outside the United States) falls flat.           In determining that IIRIRA
imposed      a   “new     disability”       on   old   conduct    through      its
“effective[ ] . . . ban on travel outside the United States,” the Vartelas
Court emphasized that the “[l]oss of the ability to travel abroad is . .
. a harsh penalty.” Id. at 1487–88. Nuñez Peña—who never enjoyed,
in the sense relevant here, the “ability” to violate controlled-
substance law—lost nothing comparable when IIRIRA was enacted.

       Of course, one might characterize Nuñez Peña’s “new
disability” slightly differently: not as the loss of the ability to violate
the law, but as the loss of the ability to violate the law without
forfeiting his eligibility for discretionary relief from removal. But
Vartelas has an answer for that argument, too. The Vartelas Court
explicitly distinguished from the provision before it laws that “do
not operate retroactively” because “they address dangers that arise
postenactment.” 1 Id. at 1489 n.7. It offered as an example of such a
law one that prohibits convicted felons from possessing firearms.
See id. at 1489.     The provision of which Nuñez Peña complains
operates in the same fashion as a felon-in-possession statute applied


       1  The petitioner’s offense, the Court observed, did not answer to that
description: “The act of flying to Greece . . . does not render a lawful permanent
resident like Vartelas hazardous.” Vartelas, 132 S. Ct. at 1489 n.7.




                                        6
to a person convicted of a felony before the statute’s passage: it takes
account of pre-enactment conduct but aims principally at post-
enactment danger.

      We therefore conclude that Vartelas did nothing to unsettle
our decision in Peralta-Taveras—which, we pause to note, was
neither blind to nor silent on the question of retroactivity.       We
observed in that case that the inquiry into whether a statute operates
with retroactive effect “should be informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled
expectations,” and that “[a]t the time of [the petitioner’s] 1997 guilty
plea for attempted marijuana possession—a controlled substance
offense subjecting him to removal . . .—[he] was on notice that his
prior [aggravated-felony] convictions would preclude him from
seeking § 240A relief if convicted of another removable offense.”
Peralta-Taveras, 488 F.3d at 584 n.2 (internal quotation marks
omitted). Those observations are as sound now as they were before
Vartelas.   Accordingly, Nuñez Peña—who, like the petitioner in
Peralta-Taveras, was on notice “[a]t the time of [his controlled-
substance convictions] . . . that his prior [aggravated-felony]
convictions would preclude him from seeking § 240A relief if
convicted of another removable offense,” see id.—is not entitled to
the relief he seeks.




                                   7
                         CONCLUSION

      In sum, the Supreme Court’s decision in Vartelas does not cast
doubt on our decision in Peralta-Taveras, and the rule of Peralta-
Taveras precludes relief in this case.   The petition for review is
accordingly DENIED.




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