                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 27 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARCO ANTONIO ALVARADO-                          No. 06-71965
RAMIREZ, a.k.a. Marco Ramirez; et al.,
                                                 Agency No. A092-239-570
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted August 4, 2010
                               Seattle, Washington

Before: NOONAN, THOMPSON, and BERZON, Circuit Judges.

       Marco Antonio Alvarado-Ramirez is a citizen and national of Mexico who

became a lawful permanent resident of the United States in 1989.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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      In 2005, an Immigration Judge found Alvarado inadmissible to the United

States after a visit to Mexico, on the basis of several criminal convictions, and also

held him ineligible to apply for a waiver of inadmissibility under former

Immigration and Nationality Act (“INA”) § 212(c). Alvarado appealed only the

denial of § 212(c) relief to the Board of Immigration Appeals (“BIA”), contending

that application of former § 212(c)’s repeal to him produces an impermissible

retroactive effect. In a one-member, non-precedential decision, the BIA affirmed,

citing this Court’s decision in Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th

Cir. 2002) as preclusive of Alvarado’s contention. This petition for review timely

followed.

                                   DISCUSSION

      I. Retroactivity

      We review de novo the BIA’s conclusions of law regarding retroactive

application of the § 212(c) repeal, see Rice v. Holder, 597 F.3d 952, 955 (9th Cir.

2010), and without Chevron deference, both because the only statutory question raised

is one of retroactivity, see Ledezma-Galicia v. Holder, 2010 WL 5174979 at *6 n.9




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(9th Cir. Dec. 22, 2010), and because the “BIA did not issue or rely on a precedential

decision.” Saavedra-Figueroa v. Holder, 625 F.3d 621, 627 (9th Cir. 2010).1

             1. The Ponnapula Theory

      Ponnapula v. Ashcroft held that applying § 212(c)’s repeal to noncitizens “who

affirmatively turned down a plea agreement” and “were convicted prior to the

effective date of IIRIRA’s repeal of former § 212(c)” would produce an impermissible

retroactive effect. 373 F.3d 480, 494 (3d Cir. 2004). Alvarado urges this Court to

follow the Third Circuit.

      We need not decide whether the Ponnapula approach is, as the government

argues, inconsistent with Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir.

2002), as Alvarado does not fall within the class of noncitizens who may have

reasonably relied on the continued availability of § 212(c) relief by affirmatively

declining a plea agreement. Alvarado testified that he was offered a plea agreement

conditioned on his co-defendant also accepting a plea agreement, but that he went to

trial because his co-defendant declined the agreement offered.          Thus, unlike

Ponnapula, Alvarado cannot claim that he made a decision with respect to a plea



      1
         We need not decide whether the BIA’s interpretations of the INA are
entitled to Skidmore deference, see Marmolejo-Campos, 558 F.3d 903, 908-09 (9th
Cir. 2009) (en banc), as we would affirm the BIA even if we did not accord it such
deference.

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agreement as to which he reasonably relied (or may have reasonably relied) on the

continued availability of § 212(c) relief. He had no decision to make regarding the

plea; it was made for him.

         Moreover, neither Alvarado’s decision to commit a crime nor his decision to

go to trial rather than plead guilty “straight up” to the offenses charged, under our

precedents, can serve as the basis for a retroactivity challenge either. See Armendariz-

Montoya, 291 F.3d at 1121-22.

         2. The Restrepo theory

         Alvarado argues that we should follow the Second Circuit’s decision in

Restrepo v. McElroy, 369 F.3d 627, 634-37 (2d Cir. 2004). In that decision, the

Second Circuit observed that lawful permanent residents who were aware that they

were inadmissible or deportable could, while § 212(c) was in force, affirmatively

apply for § 212(c) relief with the regional INS District Director before the government

placed them in exclusion or deportation proceedings, see 8 C.F.R. § 212.3(c) (1995),

and that some noncitizens delayed their affirmative applications to acquire positive

equities by developing community ties and leading virtuous lives in the interim.

Restrepo, 369 F.3d at 632-35; see also In re Gordon, 17 I.&N. Dec. 389, 391-92 (BIA

1980).




                                           4
      Again, Armendariz-Montoya may be consistent with Restrepo, but the issue is

not fairly before us in this case. Former INA § 212(c) was repealed in 1996 by two

different statutes. First, Congress enacted the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, title IV, 110 Stat. 1214, which

expanded the range of offenses that constituted aggravated felonies and made

noncitizens convicted of aggravated felonies automatically ineligible for § 212(c)

relief, regardless of the term of imprisonment they served. See AEDPA § 440(d), 110

Stat. 1277. AEDPA was signed into law on April 24, 1996. Later that year, Congress

passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, div. C., 110 Stat. 3009-546, which repealed then

INA § 212(c) outright. See IIRIRA § 304(b), 110 Stat. 3009-597. IIRIRA was signed

into law on September 30, 1996.

      In Restrepo, the Order to Show Cause was filed on November 19, 1996, so only

AEDPA § 440(d), not IIRIRA § 304(b) applied. See Restrepo, 369 F.3d at 630 & 630

n.4. Alvarado’s Notice to Appear was both served and filed in 2005, so his case is

governed by both AEDPA § 440(d) and IIRIRA § 304(b). The distinction is crucial.

      AEDPA § 440(d) went into effect upon its passage on April 24, 1996. Its

restrictions on § 212(c) relief apply to aliens whose deportation proceedings were

commenced before the Immigration Court on or after that date. See 8 C.F.R. §


                                        5
212.3(g); Magano-Pizano v. INS, 200 F.3d 603, 611 (9th Cir. 1999). IIRIRA §

304(b), by contrast, was to be effective “on the first day of the first month beginning

more than 180 days after” the statute’s enactment, IIRIRA § 309(a), 110 Stat. 3009-

625, that is April 1, 1997. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 45

(2006).    IIRIRA therefore granted noncitizens “a grace period between the

unequivocal warning that a tougher removal regime lay ahead and actual imposition

of the less opportune terms of the new law.” Id.

      Unlike a decision to accept or a decline a plea agreement, Alvarado’s alleged

decision not to apply for § 212(c) relief was open to revisitation at any moment. Cf.

id. at 44 (distinguishing St. Cyr’s guilty plea, which was “entirely past” and which

“there was no question of undoing” from “an indefinitely continuing violation that the

alien could end at any time”). As to such continuous acts or omissions, IIRIRA’s

“grace period” gave individuals “ample notice that the new law could be applied to

[them] and ample opportunity to avoid that very possibility . . . .” Id. at 45. So, if, as

Restrepo held, AEDPA § 440(d)’s limitation of § 212(c) relief could not be applied

to Alvarado, he still had an opportunity to apply for § 212(c) relief during IIRIRA’s

“grace period.” Given the notice and grace period Congress provided in IIRIRA,

Alvarado cannot make a credible claim that the “familiar considerations of fair notice,

reasonable reliance, and settled expectations” that inform retroactivity analysis,


                                            6
Martin v. Hadix, 527 343, 358 (1999) (quoting Landgraf, 511 U.S. 244, 270 (1994)),

indicate Congress did not intend IIRIRA § 304(b) to apply to noncitizens in his

situation.

       II. Equal Protection

       Finally, Alvarado contends that applying the repeal of former § 212(c) to aliens

convicted after a jury trial but not to aliens who accepted plea agreements lacks a

rational basis and would violate constitutional equal protection. Alvarado was not

required to exhaust his equal protection claim because it is a claim that the agency

could not be expected to resolve. See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th

Cir. 2008); cf. Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005).

       Rational basis review applies here, because Alvarado does not argue that the

statutory distinctions discriminate against a protected class “or trench on any

fundamental rights.” Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir. 2009) (per

curiam) (en banc). There is assuredly a conceivable rational reason, see Abebe, 554

F.3d at 1206, Congress would apply the repeal of § 212(c) relief to noncitizens who

had no choice but to go to trial but not to those who pleaded guilty: Noncitizens who,

like Alvarado, had no choice but go to trial could not have relied upon the continuing

availability of § 212(c) relief in deciding whether to go to trial, and so acquired no




                                           7
reliance interest that Congress would be reluctant to disrupt.   See Armendariz-

Montoya, 291 F.3d at 1121-22.

                                CONCLUSION

      For the foregoing reasons, Alvarado’s petition for review is DENIED.




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