     Case: 15-60106    Document: 00513519258     Page: 1   Date Filed: 05/24/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-60106
                               Summary Calendar
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                   May 24, 2016
FILEMON LIMONTECO LUCAS,
                                                                  Lyle W. Cayce
                                                                       Clerk
                                            Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                            Respondent


                      Petition for Review of an Order of the
                         Board of Immigration Appeals
                              BIA No. A091 237 190


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Filemon Limonteco Lucas (Limonteco), a native and citizen of Mexico,
petitions for review of an order of the Board of Immigration Appeals (BIA) that
he is statutorily ineligible for relief from removal under former § 212(c) of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (repealed 1997).
For the following reasons, we DENY the petition for review.
                                BACKGROUND
      Limonteco pleaded guilty in December 1996 to transporting an alien
within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A), and he
received a sentence of probation in March 1997. In 2008, when he attempted
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to reenter the United States after a trip abroad, the Department of Homeland
Security instituted removal proceedings, alleging that his prior offense was an
aggravated felony under 8 U.S.C. § 1101(a)(43)(N) that rendered him
removable under 8 U.S.C. § 1227(a)(2)(A)(iii).
      The immigration judge (IJ) found that Limonteco was removable under
§ 1227(a)(2)(A)(iii) based on his prior conviction, and Limonteco sought a
waiver under former § 212(c). At the time that Limonteco pleaded guilty in
December 1996, § 212(c) allowed the Attorney General to grant a waiver of
deportation to certain lawful permanent residents who, for example, had
engaged in alien smuggling. See § 1182(a)(6)(E)(1), (c) (eff. Apr. 24, 1996;
repealed 1997). Limonteco argued that the waiver remained available to him
and should be applied in his case under INS v. St. Cyr, 533 U.S. 289 (2001),
which held “that § 212(c) relief remains available for aliens . . . whose
convictions were obtained through plea agreements and who, notwithstanding
those convictions, would have been eligible for § 212(c) relief at the time of their
plea under the law then in effect.” St. Cyr, 533 U.S. at 326.
      By the time Limonteco pleaded guilty in December 1996, however,
Congress had enacted statutory amendments that would affect Limonteco’s
eligibility for § 212(c) relief. First, in April 1996, Congress enacted § 440(d) of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
No. 104-132, 110 Stat. 1214, 1277, which amended § 212(c) to bar relief for
aggravated felons. § 1182(c) (eff. Apr. 24, 1996; repealed 1997); see 8 U.S.C.
§ 1251(a)(2)(A)(iii)   (eff.   Apr.    24,   1996)   (recodified   as   amended    at
§ 1227(a)(2)(A)(iii)); Carranza-De Salinas v. Gonzales (Carranza-De Salinas I),
477 F.3d 200, 204 (5th Cir. 2007).
      Second, in September 1996, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-



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208, Div. C, 110 Stat. 3009-546, which generally took effect in April 1997, see
IIRIRA § 309(a), 110 Stat. at 3009-625. Although IIRIRA § 304(b), 110 Stat.
at 3009-597, generally repealed § 212(c), the IJ ruled that this did not bar
Limonteco’s application because § 304(b) did not take effect until April 1997—
after Limonteco’s guilty plea. 1 Nevertheless, the IJ ruled that a different part
of IIRIRA—§ 321(a)—changed the definition of “aggravated felony” and
rendered Limonteco ineligible for § 212(c) relief. IIRIRA, § 321(a), 110 Stat. at
3009-627 to -628. Before IIRIRA, the INA’s definition of “aggravated felony”
did not include an offense like Limonteco’s under § 1324(a)(1)(A) unless the
sentence imposed for the offense included a prison term of “at least 5 years,” 8
U.S.C. § 1101(a)(43)(N) (eff. Apr. 24, 1996), but IIRIRA § 321(a) deleted the
five-year prison term requirement so that all § 1324(a)(1)(A) offenses became
aggravated felonies, 110 Stat. at 3009-627 to -628 (codified at § 1101(a)(43)(N)).
Limonteco argued that his prior conviction was not an “aggravated felony”
under the pre-IIRIRA definition because he received only a probationary
sentence, but the IJ ruled that Congress had clearly expressed its intent that
IIRIRA § 321(a)’s amended definition of “aggravated felony” apply
retroactively. 2 Accordingly, the IJ ruled that Limonteco was ineligible for relief
under former § 212(c) and ordered him removed to Mexico.
      Limonteco timely appealed to the BIA, which likewise ruled that he was
ineligible for § 212(c) relief as it existed after the enactment of the AEDPA
because of Congress’s clearly expressed intent that IIRIRA’s new aggravated
felony definition apply retroactively. Limonteco timely petitioned this court
for review.



      1   See infra note 3.

      2   See infra note 3.


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                                 DISCUSSION
      Limonteco argues that the BIA erroneously applied IIRIRA retroactively
in his case to preclude him from seeking relief under § 212(c). The BIA’s
determination that Limonteco is ineligible for relief under former § 212(c) is a
conclusion of law, which we review de novo. Garrido-Morato v. Gonzales, 485
F.3d 319, 322 (5th Cir. 2007).         We have jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D), which allows us to review questions of law even where
§ 1252(a)(2)(C) otherwise bars review of removal orders against aliens who
have been convicted of an aggravated felony. Hernandez-Castillo v. Moore, 436
F.3d 516, 519 (5th Cir. 2006).
      “Despite the dangers inherent in retroactive legislation, it is beyond
dispute that, within constitutional limits, Congress has the power to enact laws
with retrospective effect.” St. Cyr, 533 U.S. at 316. Therefore, although there
is a “deeply rooted presumption against retroactive legislation,” Vartelas v.
Holder, 132 S. Ct. 1479, 1484 (2012), a statute generally “must be given
retroactive effect if Congress has communicated, with clarity, its intent that
the law be applied retroactively,” Hernandez-Castillo, 436 F.3d at 519.
      In St. Cyr, the Supreme Court found Congress’s intent unclear with
respect to the retroactivity of IIRIRA § 304(b), St. Cyr, 533 U.S. at 326, but the
Court has repeatedly stated that Congress clearly intended IIRIRA § 321(a)’s
amendment of the “aggravated felony” definition to be retroactive, Vartelas,
132 S. Ct. at 1487; St. Cyr, 533 U.S. at 319. Accordingly, we have held that
IIRIRA § 321(a)’s new “aggravated felony” definition applies retroactively.
Garrido-Morato, 485 F.3d at 324 (citing IIRIRA § 321(b)-(c), 110 Stat. at 3009-
628). Thus, the BIA properly treated Limonteco’s prior § 1324(a)(1)(A) offense




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as an “aggravated felony” under the post-IIRIRA statute regardless of when he
pleaded guilty. 3
       Limonteco attempts to isolate the definition of his prior offense as an
aggravated felony from the legal consequences of that definition, namely,
ineligibility for § 212(c) relief.       We rejected such an approach in Garrido-
Morato, 485 F.3d at 320-24. There, the alien pleaded guilty in June 1996 to an
offense that was not an aggravated felony before IIRIRA but would be under
IIRIRA’s new definition.          Garrido-Morato, 485 F.3d at 320-22.                The alien
sought discretionary relief under former § 244(a)(2) of the INA, but that
provision required the alien to prove herself “a person of good moral character.”
8 U.S.C. § 1252(a)(2) (repealed 1997); see Garrido-Morato, 485 F.3d at 321. At
the time the alien pleaded guilty (and still today), the INA forbade treating
anyone “who at any time has been convicted of an aggravated felony” as “a
person of good moral character.” § 1101(f)(8) (2012); see also § 1101(f)(8) (eff.
Apr. 24, 1996) (same). Thus, when we upheld the BIA’s denial of discretionary
relief under former § 244(a)(2) in Garrido-Morato based on the retroactive
application of IIRIRA § 321(a)’s aggravated felony definition, we implicitly
rejected any distinction between the retroactive application of the definition


       3  We need not address whether Limonteco’s guilty plea after IIRIRA’s enactment but
before the effective date of its repeal of § 212(c) truly implicates the holding in St. Cyr, which
was based on the premise that aliens who pleaded guilty before Congress repealed § 212(c)
“almost certainly relied upon th[e] likelihood [of receiving § 212(c) relief] in deciding whether
to forgo their right to a trial.” St. Cyr, 533 U.S. at 325; see also Carranza-De Salinas v. Holder
(Carranza-De Salinas II), 700 F.3d 768, 773 (5th Cir. 2012). Also, we need not address
whether the application of IIRIRA’s new “aggravated felony” definition to Limonteco’s guilty
plea in December 1996, which was after the enactment of § 321(a), truly resulted in a
retroactive impact. Compare IIRIRA § 309(a) (setting general effective date for IIRIRA in
April 1997), with Garrido-Morato, 485 F.3d at 323 (treating IIRIRA § 321(b)-(c) as making
IIRIRA § 321(a) applicable to actions taken after IIRIRA’s enactment in September 1996).
Even assuming arguendo that the application of IIRIRA § 321(a) here creates a retroactive
impact that would otherwise implicate St. Cyr’s holding, we deny Limonteco’s petition for
review because Congress has clearly expressed its intent that IIRIRA § 321(a) apply
retroactively. See Garrido-Morato, 485 F.3d at 320-24.


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itself and the consequences of that change under the law in effect at the time
the alien pleaded guilty. See Garrido-Morato, 485 F.3d at 320-24.
      At the time Limonteco pleaded guilty in December 1996, Congress had
already enacted § 440(d) of the AEDPA, which made aggravated felons
ineligible for discretionary relief under former § 212(c). § 1182(c) (eff. Apr. 24,
1996; repealed 1997); see § 1251(a)(2)(A)(iii) (eff. Apr. 24, 1996) (recodified as
amended at § 1227(a)(2)(A)(iii)); see Carranza-De Salinas I, 477 F.3d at 204.
The treatment of Limonteco’s prior offense as an aggravated felony therefore
makes him ineligible for § 212(c) relief as it existed when he pleaded guilty.
See Garrido-Morato, 485 F.3d at 320-24.
      That Limonteco pleaded guilty after § 440(d) of the AEDPA had already
narrowed § 212(c) relief also distinguishes his case from cases on which he
relies, St. Cyr and Carranza-De Salinas v. Holder (Carranza-De Salinas II),
700 F.3d 768 (5th Cir. 2012). The aliens in St. Cyr and Carranza-De Salinas II
were eligible for § 212(c) relief at the time of their convictions despite having
been convicted of aggravated felonies because their convictions occurred in
March 1996 and 1993, respectively, before Congress enacted the AEDPA in
April 1996. St. Cyr, 533 U.S. at 293; Carranza-De Salinas II, 700 F.3d at 769-
70. By contrast, when Limonteco pleaded guilty in December 1996, § 212(c)
relief had already become unavailable to aggravated felons through the
AEDPA. § 440(d), 110 Stat. at 1277.
      Limonteco’s reliance on the Supreme Court’s holding in Vartelas that
retroactively applying other parts of IIRIRA is impermissible, Vartelas, 132 S.
Ct. at 1483-92, is also unavailing. Before IIRIRA, lawful permanent residents
(LPRs) could reenter the United States after brief trips abroad even if they
were excludable (in today’s terms inadmissible) so long as they were not
deportable. Vartelas, 132 S. Ct. at 1484-85. After IIRIRA, such aliens would



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be subject to removal when they attempted to reenter. Id. Applying those
changes retroactively in Vartelas meant that the alien faced a “new disability”
as an excludable-but-not-deportable LPR, who would have been allowed
reentry before IIRIRA but was now subject to removal. Id. at 1487.
      It is true that Limonteco was also an LPR placed in removal proceedings
upon his attempt to reenter the United States after a trip abroad.                   Also,
Limonteco conceded before the IJ that, like the alien in Vartelas, 132 S. Ct. at
1485 & n.3, he was excludable under pre-IIRIRA law. See § 1182(a)(6)(E) (eff.
Apr. 24, 1996). But the similarities end there. The LPR in Vartelas was not
an aggravated felon but had a single prior conviction for a crime involving
moral turpitude, which rendered him excludable but not deportable under pre-
IIRIRA law. Vartelas, 132 S. Ct. at 1485 & n.3. In contrast, the treatment of
Limonteco’s prior offense as an aggravated felony—which as explained above
is proper even if it is retroactive—means that under the pre-IIRIRA law
otherwise in effect at the time Limonteco pleaded guilty in December 1996, he
would     have   been     deportable    whether     he   traveled     abroad    or    not.
§ 1251(a)(2)(A)(iii)     (eff.   Apr. 24,   1996)   (recodified     as    amended      at
§ 1227(a)(2)(A)(iii)).
                                    CONCLUSION
      The BIA did not err in finding Limonteco ineligible for § 212(c) relief. See
Garrido-Morato, 485 F.3d at 320-24. We therefore DENY his petition for
review.




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