                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2007

Cespedes v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 06-1550




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                                                              PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 06-1550




                             CRISTIAN CESPEDES-AQUINO
                                                 Petitioner
                                         vs.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent

                                    ____________

               ON PETITION FOR REVIEW OF AN ORDER DATED
                 BY THE BOARD OF IMMIGRATION APPEALS
                           (BIA No. A36-816-374)
                               ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                   July 10, 2007
                Before: SLOVITER, WEIS and ROTH, Circuit Judges
                            (Filed August 21, 2007)
                                 ______________

Sandra L. Greene, Esquire
50 Mount Zion Road
York, PA 17402
Attorney for Petitioner

Peter D. Keisler, Esquire
Assistant Attorney General
Civil Division

James E. Grimes, Esquire

                                          1
Senior Litigation Counsel

William C. Minick, Esquire

United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

Attorneys for Respondent


                                      _______________

                                          OPINION


WEIS, Circuit Judge.

              Under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. §

1182(c), the Attorney General had discretion to provide leniency to certain permanent

legal residents charged with deportable offenses. One treatise writer has described that

section as one of the most “complex and frequently litigated sections of the immigration

law.” 6 Charles Gordon et al., Immigration Law and Procedure § 74.04[2] (rev. ed.

2006). Even though Congress repealed the provision in 1996, courts continue to confront

lingering legal issues, especially with respect to the retroactive effect of the repeal.

              Petitioner in the case before us contends that he is entitled to apply for relief

under the provision even though he was convicted of criminal offenses years after section

212(c) was repealed. See § 304(b) of the Illegal Immigration Reform and Responsibility

Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C., 110 stat. 3009-546 (effective

                                               2
April 1, 1997).   We do not agree and will deny review.

              Petitioner is a citizen of the Dominican Republic who was admitted to the

United States as a permanent resident in 1979. In November 1989, he pleaded guilty in a

New York state court to the felony of attempted criminal sale of a controlled substance.

He was sentenced to a five-year term of probation.

              On July 20, 1990, petitioner was once again indicted in a New York state

court for the criminal sale of a controlled substance. The state offered him a plea

agreement of two to four years imprisonment on June 6, 1990, but he refused to accept it.

              After petitioner failed to appear for his criminal proceedings, a bench

warrant was issued for his arrest on October 11, 1990. He was returned on the warrant on

December 13, 1995. He absconded again and a second bench warrant was issued on

January 22, 1996. He was not returned on that warrant until June 2003.

              On January 5, 2004, petitioner pleaded guilty in the state court to the felony

of sale of a controlled substance in violation of New York Penal Law section 220.34. He

was sentenced to a term of three and a half to seven years incarceration.

              In 2003, the Department of Homeland Security issued a Notice to Appear

on the basis of the petitioner’s first conviction and later amended the charges to include

the second offense. At a hearing before an IJ on April 14, 2005, petitioner argued that his

second conviction, which is an aggravated felony under INA section 237(a)(2)(A)(iii), 8

U.S.C. § 1227(a)(2)(A)(iii), did not make him ineligible to apply for consideration under



                                             3
section 212(c) because he rejected a plea agreement before the repeal at a time when he

would have been eligible for relief.

              The IJ and BIA both held that the repeal did not have an impermissible

retroactive effect because petitioner was not entitled to rely on the availability of section

212(c). He had absented himself from the New York criminal proceedings for some 13

years and did not plead guilty until well after the repeal of that section. Petitioner appeals

that determination.

              Briefly stated, before 1996, the Attorney General had broad discretion

under section 212(c) to grant qualified permanent legal residents relief from deportation

under certain circumstances. The history of that provision and its evolution are set out in

some detail in INS v. St. Cyr, 533 U.S. 289 (2001), and need not be reiterated here.

Effective April 1, 1997, section 304(b) of IIRIRA repealed section 212(c) in its entirety.

Much of the current litigation has been concerned with how that development affects

aliens who accepted or rejected a plea offer for, or were convicted of, criminal acts that

are grounds for deportation.

              In St. Cyr, the Supreme Court addressed the retroactivity issue as it affected

an alien who pleaded guilty before the effective date of the repeal at a time when he was

eligible for section 212(c) relief, but was not placed into deportation procedures until

after the repeal. St. Cyr, 533 U.S. at 293. The Court concluded that Congress had not

unmistakably intended the repeal to operate retroactively and that it had an impermissible



                                              4
retroactive effect as applied to a person in St. Cyr’s circumstances. Id. at 320-26.

               The Court observed that aliens who pleaded guilty likely relied on the

availability of section 212(c) relief in deciding to forego their right to a trial. Id. at 325.

The Court held, therefore, “that § 212(c) relief remains available for aliens, like

respondent, whose convictions were obtained through plea agreements and who,

notwithstanding their convictions, would have been eligible for section 212(c) relief at the

time of the plea under the law then in effect.” 1 Id. at 326.

               The next year Perez v. Elwood, 294 F.3d 552 (3d Cir. 2002), presented us

with another variation on retroactivity. Perez was found guilty by a jury in January 1997

of criminal conduct that had occurred in 1992 and was sentenced in June 1997. Id. at

555. Relying on an ex post facto theory, he first argued that, even though his conviction

occurred after the repeal of section 212(c), it was unconstitutional to deny him eligibility

to apply for section 212(c) relief because he was convicted for conduct that occurred

before the repeal. Id. at 556. We rejected that argument because its ex post facto premise

did not apply in civil cases.

               We noted that the jury verdict of guilt in Perez’s criminal case occurred

some three months before the repeal of section 212(c) became effective, but the sentence




               1
                The immigration authorities issued new regulations in 2004 that adopted
the view that the critical time for determining eligibility under this rule was the date when
the prosecution and the alien agreed to a plea stipulation rather than when it was formally
presented to a court. See 8 C.F.R. § 1003.44; 8 C.F.R. § 1212.3.

                                                5
was not imposed until two months after the repeal. We concluded that under the

definition of a “conviction” created by section 322 of IIRIRA the petitioner’s conviction

took effect on the date the sentence was imposed, not when the jury handed down its

verdict. Id. at 560-62.

               We explained that, because an alien’s deportability is triggered by his

conviction, he is not “even potentially eligible for § 212(c) relief until after he . . . is

convicted.” Id. at 560-61. The repeal, therefore, could not have a retroactive effect on

aliens like Perez who were ineligible for relief when the repeal took effect. Id. We

concluded that aliens who are convicted for an aggravated felony after the effective date

of IIRIRA are ineligible for section 212(c) relief on any theory. Id.

               In Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), we were confronted

with a situation in which the alien rejected a plea offer, went to trial, and was convicted

years before section 212(c)’s repeal. We concluded that the repeal was impermissibly

retroactive as applied to such aliens. Id. at 496. We based that holding on our conclusion

that, as in St. Cyr, the aliens there had a reliance interest in the availability of section

212(c) relief. Id.

               We explicitly stated in Ponnapula, however, that our holding was limited to

cases where the conviction occurred before the effective date of section 212(c)’s repeal

and that the holding did not impair Perez’s precedential value. Id. at 494 n.12. The

petitioner in the case before us has treated Ponnapula more expansively than it reads by



                                                6
arguing that it applies to all cases in which a petitioner was offered a plea agreement

before the repeal.

              In the next relevant case, Atkinson v. Attorney General, 479 F.3d 222 (3d

Cir. 2007), petitioner was not offered a plea agreement and was convicted years before

the effective date of section 212(c)’s repeal. We concluded that the permissibility of a

retroactive application of the repeal does not rest solely on a petitioner’s reliance upon the

continued availability of section 212(c) relief. Id. at 229. Rather, the proper inquiry was

whether retroactively applying the repeal effectively imposed new detrimental

consequences to prior convictions. Id. at 230. We decided that since the petitioner’s

conviction occurred before section 212(c)'s repeal at a time when he was eligible for

section 212(c) relief, he retained that right after the repeal. Id.

              Atkinson, therefore, is consistent with Ponnapula where the conviction

occurred before the repeal of section 212(c) and is clearly distinguishable from Perez

where the conviction occurred afterward.2

              We are hesitant to announce a brightline rule, particularly in immigration

cases. Here, however, our line of precedent generally shows that if an alien’s conviction




              2
               Hernandez v. Gonzales, 437 F.3d 341 (3d Cir. 2006), is not inconsistent.
That case dealt with the repeal of a similar form of relief under INA § 244(a) called
suspension of deportation. Id. at 346. We denied the alien relief from deportation even
though his conviction occurred before the repeal of section 244(a). Id. at 353.
Hernandez, however, was ineligible for relief at the time of his conviction because he did
not meet the additional residential requirements for eligibility under section 244(a).

                                               7
occurred before the repeal of section 212(c) and he is at that time otherwise eligible for

relief, he retains that eligibility despite the repeal. On the other hand, if the underlying

conviction occurs after the repeal, there has been no retroactive effect and section 212(c)

relief is not available.3

               The issue before us, therefore, is straightforward. We need only determine

whether the conviction occurred before or after the repeal of section 212(c). Here, the

conviction clearly occurred afterward. The parties’ discussions about whether petitioner

Cespedes-Aquino waived his right to section 212(c) relief by absconding or was entitled

to rely on the availability of that relief are beside the point. Petitioner is ineligible to

claim a benefit under the statute because his conviction in 2004 was after the repeal of

section 212(c).

               Accordingly, the petition for review will be denied.




               3
                We do not address the problem that might occur if an alien is convicted
before the repeal of section 212(c), but is granted a new trial and is convicted for the
second time after the repeal.

                                                8
