                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-2466
NELSON I. VELEZ-LOTERO,
                                              Petitioner-Appellee,
                                v.

DEBORAH ACHIM, Interim Field Office Director,
U.S. Immigration and Customs Enforcement,
MICHAEL GARCIA, Assistant Secretary of
U.S. Immigration and Customs Enforcement,
ALBERTO R. GONZALES, Attorney General of
the United States, et al.,
                                       Respondents-Appellants.
                         ____________
         Appeal from the United States District Court for
        the Northern District of Illinois, Eastern Division.
         No. 02 C 3615—Robert W. Gettleman, Judge.
                         ____________
    ARGUED JANUARY 13, 2005—DECIDED JULY 11, 2005
                    ____________



  Before ROVNER, EVANS and SYKES, Circuit Judges.
   SYKES, Circuit Judge. Nelson Velez-Lotero, a citizen of
Columbia, pled guilty to a controlled substance offense in
Illinois in 1995 and was later ordered deported on the basis
of that conviction. After serving almost seven years of a
seventeen-year prison sentence, Velez-Lotero was paroled
2                                                No. 04-2466

and his custody was transferred to immigration authorities.
He then filed a motion to reopen his case in the immigra-
tion court, claiming eligibility for discretionary waiver of
inadmissibility under § 212(c) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1182(c), notwithstanding
his conviction.
  Section 212(c) was repealed by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”); it was replaced by a narrower discretionary
relief provision that excludes from eligibility anyone pre-
viously convicted of an aggravated felony, including drug
offenses like Velez-Lotero’s. However, in INS v. St. Cyr, 533
U.S. 289 (2001), the Supreme Court held that the repeal
could not be retroactively applied to aliens whose convic-
tions were obtained by guilty pleas entered prior to
IIRIRA’s effective date. The immigration judge (“IJ”) denied
Velez-Lotero’s motion to reopen, concluding that although
the repeal of § 212(c) could not be applied to Velez-Lotero
under St. Cyr, he was otherwise ineligible for § 212(c)
discretionary relief because pre-IIRIRA law precluded such
relief for aliens who had served five years or more in prison
on an aggravated felony conviction.
  The district court granted Velez-Lotero’s habeas corpus
petition, holding that under St. Cyr, eligibility for § 212(c)
discretionary relief is determined at the time of the alien’s
guilty plea. On this reading of St. Cyr, the district court
concluded that Velez-Lotero was eligible for § 212(c) relief
because at the time of his guilty plea he had not yet served
five years’ imprisonment.
  We reverse. The district court misapplied St. Cyr. The
retroactive application of the repeal of § 212(c) is not at is-
sue here. In denying Velez-Lotero’s motion to reopen, the IJ
did not retroactively apply IIRIRA’s repeal of § 212(c);
rather, the immigration judge concluded, correctly, that
Velez-Lotero was ineligible for § 212(c) relief under pre-
No. 04-2466                                                3

IIRIRA law because at the time he applied for relief he had
served more than five years in prison on an aggravated
felony conviction.


                     I. Background
  Velez-Lotero, a native and citizen of Columbia, entered
the United States in 1986 as an immigrant. On February 1,
1995 he pled guilty to possession of a controlled substance
with intent to deliver in Illinois state court and was sen-
tenced to a seventeen-year term of imprisonment. In August
of 1996, the Immigration and Naturalization Service issued
an order to show cause, charging Velez-Lotero with
deportability under sections 241(a)(2)(A)(iii) and 241(a)(2)
(B)(i) of the INA. At a deportation hearing on March 4,
1997, Velez-Lotero admitted the allegations contained in
the order, conceded deportability, and sought no relief. The
IJ ordered him deported to Columbia and Velez-Lotero did
not appeal.
  On February 1, 2002, after serving almost seven years in
prison, Velez-Lotero was paroled and his custody was
transferred to immigration authorities. On June 19, 2002,
he moved to reopen his deportation case, claiming eligibility
for discretionary relief under § 212(c) of the INA, 8 U.S.C.
§ 1182(c) and citing the Supreme Court’s then-recent
decision in St. Cyr. In St. Cyr, the Supreme Court held that
the repeal of § 212(c) was impermissibly retroactive when
applied to aliens who pled guilty prior to IIRIRA’s effective
date; therefore, the Court concluded, discretionary relief
under § 212(c) “remains available to aliens whose convic-
tions 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.
  In his motion to reopen, Velez-Lotero asserted that under
8 U.S.C. § 1182(c) (1994)—the “law then in effect” at the
4                                                No. 04-2466

time of his plea—§ 212(c) relief was available to a criminal
alien facing deportation who had not served five years’
imprisonment. Velez-Lotero contended that because he had
not served five years in prison at the time of his guilty plea,
he was eligible for § 212(c) relief pursuant to the Supreme
Court’s decision in St. Cyr. Velez-Lotero also requested
protection under Article 3 of the United Nations Convention
Against Torture.
  The IJ held that Velez-Lotero was ineligible for a § 212(c)
waiver because he requested relief only after serving more
than five years in prison for an aggravated felony, which
made him statutorily ineligible under the law as it stood at
the time of his plea. The IJ also ruled that Velez-Lotero’s
petition for relief under the Convention Against Torture
was untimely; aliens seeking relief under the Convention
and whose deportation orders became final before March 22,
1999, must have filed their motions to reopen by June 21,
1999. See 8 C.F.R. § 208.18(b)(2). Velez-Lotero’s deportation
order became final shortly after March 4, 1997, so he was
required to file for relief by June 21, 1999, but did not. In
denying Velez-Lotero’s claim under the Convention, the IJ
did not consider Velez-Lotero’s argument that the June 21,
1999, filing deadline was arbitrary and capricious, being
only three months after the legislation came into effect.
  Velez-Lotero appealed to the Board of Immigration
Appeals (“BIA”), which affirmed the IJ’s decision without
opinion under its streamlining procedure. See 8 C.F.R.
§ 1003.1(e)(4). He then sought review in this court, but we
dismissed the petition pursuant to the jurisdiction-stripping
provisions of IIRIRA. See 8 U.S.C. § 1252(a)(2)(c); Calcano-
Martinez v. INS, 533 U.S. 348 (2001). Velez-Lotero then filed
a petition for a writ of habeas corpus in the district court.
The district court granted relief, remanding the case to the
IJ for a new hearing. Velez-Lotero v. Achim, 312 F. Supp. 2d
1097, 1098 (N.D. Ill. 2004). The court read St. Cyr to
require that Velez-Lotero’s eligibility for § 212(c) relief be
No. 04-2466                                                  5

determined as of the time of his guilty plea; because Velez-
Lotero had not served five years’ imprisonment at the time
of his plea, the court held he was not precluded from
§ 212(c) eligibility under pre-IIRIRA law. Id.
  In reaching this conclusion, the court noted that prior to
§ 212(c)’s repeal, the BIA had held that “[t]he plain lan-
guage of section 212(c) . . . now bars such relief to any alien
who has been convicted of an aggravated felony or felonies
and who ‘has served,’ not merely been sentenced to, a term
of imprisonment of at least five years.” Id. (quoting In re
Ramirez-Somera, 20 I&N Dec. 564, 566 (BIA 1992)). The
district court reasoned that under St. Cyr, the operative
date for determining § 212(c) eligibility is the date of the
alien’s guilty plea. Id. at 1100. Velez-Lotero obviously had
not served five years in prison for an aggravated felony at
the time of his guilty plea, so the district court concluded
that he remained eligible for § 212(c) relief under St. Cyr
and the denial of his motion to reopen was therefore im-
proper. Id.
  The district court also held that remand was appropriate
because the IJ had not considered Velez-Lotero’s argument
that the three-month “window” to file for relief under the
Convention Against Torture was arbitrary and capricious.
The court also instructed the IJ to consider Velez-Lotero’s
request for a bond under 8 U.S.C. § 1226. The respondents—
immigration authorities responsible for Velez-Lotero’s
custody (hereafter collectively “the government”)—appealed.


                      II. Discussion
  A. Eligibility for § 212(c) Waiver
  The INA of 1952 excluded from the United States several
classes of aliens, including aliens convicted of crimes
involving moral turpitude or illicit trafficking in narcotics.
This rule included a proviso, in § 212(c), granting the
6                                                 No. 04-2466

Attorney General broad discretion to admit certain aliens
otherwise excludable under the Act. Section 212(c) provided
that “[a]liens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and not
under an order of deportation, and who are returning to a
lawful unrelinquished domicile of seven consecutive years,
may be admitted in the discretion of the Attorney General.”
8 U.S.C. § 1182(c). The BIA and federal courts later broad-
ened the scope of this provision by holding that lawful
permanent residents were eligible to apply for § 212(c) relief
in deportation proceedings as well. See Francis v. INS, 532
F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26
(BIA 1976). Eligibility for § 212(c) relief does not mean
entitlement to relief. Section 212(c) limits the class of
persons who are eligible to be considered for relief by the
Attorney General; the ultimate decision whether to grant
such relief is subject to administrative regulation and BIA
decisional law, none of which is at issue in this case.
  In 1990 Congress amended § 212(c) to preclude relief for
“an alien who has been convicted of one or more aggravated
felonies and has served for such felony or felonies a term of
imprisonment of at least 5 years.” Pub. L. No. 101-649, 104
Stat. 5052 (November 29, 1990); 8 U.S.C. § 1182(c). This
new version of § 212(c) applied to applications for relief filed
after its date of enactment. See Cortes-Castillo v. INS, 997
F.2d 1199, 1202 n.1 (7th Cir. 1993). Congress again modifed
§ 212(c) as part of the 1996 Antiterrorism and Effective
Death Penalty Act (“AEDPA”), specifying a host of offenses
for which conviction (and consequent prison time) would
preclude waiver eligibility. Pub. L. No. 104-132, 110 Stat.
1214 (April 24, 1996). Later that same year, Congress
passed IIRIRA, which repealed § 212(c) entirely. In its place
Congress enacted 8 U.S.C. § 1229b, which gives the Attor-
ney General authority to cancel removal for a narrow class
of inadmissible or deportable aliens; notably, that class
excludes anyone previously convicted of “any aggravated
No. 04-2466                                                  7

felony.” 110 Stat. 3009-597 (creating 8 U.S.C. § 1229b); see
also St. Cyr, 533 U.S. at 297. The new statute applies to
aliens in removal proceedings after April 1, 1997.
  In St. Cyr, the Supreme Court, applying the retroactivity
analysis set forth in Landgraf v. USI Film Prods., 511 U.S.
244 (1994), held that the repeal of § 212(c) was impermis-
sibly retroactive as applied to aliens who pled guilty prior
to IIRIRA’s effective date in the expectation that they would
continue to be eligible for § 212(c) waivers. St. Cyr, 533 U.S.
at 326. The Court held that “IIRIRA’s elimination of any
possibility of § 212(c) relief for people who entered into plea
agreements with the expectation that they would be eligible
for such relief clearly ‘attaches a new disability, in respect
to transactions or considerations already past,’ ” and
therefore could not be retroactively applied. Id. at 321.
  St. Cyr does not resolve this case. We accept, as the IJ
did, that under St. Cyr the repeal of § 212(c) does not apply
to Velez-Lotero, because he pled guilty prior to IIRIRA’s ef-
fective date; nevertheless, he remains ineligible for § 212(c)
relief under the law in effect at the time of his guilty plea.
The law then in effect was the version of § 212(c), as
amended in 1990, which denied eligibility for discretionary
relief to any alien convicted of an aggravated felony who
had served five or more years in prison for that offense.
Under that law, Velez-Lotero is statutorily ineligible for
relief; when he sought § 212(a) relief, he had served more
than five years in prison for an aggravated felony.
  The district court read St. Cyr to require that eligibility
for § 212(c) relief be evaluated on the basis of the facts—
not just the law—in existence at the time of a criminal
alien’s guilty plea, regardless of when application for relief
is made or what has transpired since the plea. Put differ-
ently, under the district court’s interpretation of St. Cyr,
any permanent resident alien who pled guilty to an aggra-
vated felony before April 1, 1997 (IIRIRA’s effective date) is
8                                                No. 04-2466

perpetually eligible for a § 212(c) waiver, regardless of
whether he has served five years or more in prison at the
time he applies for relief. This interpretation effectively
nullifies the pre-IIRIRA statute. St. Cyr cannot be read so
broadly.
  Enrico St. Cyr pled guilty to an aggravated felony in
March 1996 and deportation proceedings against him were
initiated in 1997, after the effective date of IIRIRA. St. Cyr,
533 U.S. at 293. The Supreme Court held only that the
repeal of § 212(c) could not be applied to him retroactively;
the Court did not evaluate his case under the pre-IIRIRA
statute. We acknowledge that the language of the Court’s
ultimate holding contains a suggestion that the date of an
alien’s guilty plea is the operative date for determining
eligibility for a § 212(c) waiver: “We therefore hold that
§ 212(c) relief remains available for aliens . . . whose con-
victions 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.” Id. at 326. However, as we have noted, using
the date of plea as the point at which a criminal alien’s
§ 212(c) eligibility is determined effectively renders the pre-
IIRIRA statute a nullity; the pre-IIRIRA statute precludes
eligibility for an alien who has been convicted of an aggra-
vated felony and who “has served” five or more years in
prison, a circumstance that obviously can never exist on the
date of guilty plea.
  St. Cyr was a case about the retroactive effect of IIRIRA’s
repeal of § 212(c); we do not believe the Supreme Court
intended to disturb the operation of the pre-IIRIRA statute.
Nothing in St. Cyr purports to alter the rule that the 1990
version of § 212(c) applies to applications for relief submit-
ted after its effective date, November 29, 1990, Cortes-
Castillo, 997 F.2d at 1202, or the rule that eligibility is
determined as of the date of the hearing at which relief is
requested, Ramirez-Somera, 20 I&N Dec. at 566. We
No. 04-2466                                                      9

conclude that although St. Cyr requires that the law in
effect at the time of Velez-Lotero’s guilty plea be applied to
his application for § 212(c) relief, it does not require that his
application for relief be considered as if it had been filed or
heard on the date of his plea. Velez-Lotero did not seek
§ 212(c) relief until after he had served more than five years
in prison for an aggravated felony. This circumstance—not
the retroactive application of the repeal of § 212(c)—dis-
qualified him from eligibility for discretionary relief under
the law in effect at the time of his guilty plea.1


    B. Request for Bond Under 8 U.S.C. § 1226
  As we have noted, the district court also remanded this
case to the IJ for consideration of Velez-Lotero’s argument
that the three-month “window” for filing his claim under the
Convention against Torture was arbitrary and capricious.
The district court instructed the IJ on remand to consider
Velez-Lotero’s request for a bond under 8 U.S.C. § 1226.
The government has not appealed the remand of Velez-
Lotero’s claim under the Convention, but has challenged the
district court’s order that the IJ consider Velez-Lotero’s
request for bond. Velez-Lotero asserted in his habeas peti-
tion that mandatory detention without bond of all aggra-
vated felons in deportation proceedings is unconstitutional,
because by failing to distinguish permanent resident aliens



1
   The government urges us to consider an alternative ground
for denial of Velez-Lotero’s claim under St. Cyr. It asks that we
adopt the reasoning of the Third Circuit in Dipeppe v. Quarantillo,
337 F.3d 326 (3d Cir. 2003), which limited the St. Cyr exception
to aliens who subjectively relied upon the availability of § 212(c)
relief at the time of their plea agreements, for instance, by
bargaining explicitly for sentencing recommendations of less than
five years. Because we have resolved this appeal on other grounds,
we need not explore this argument.
10                                                No. 04-2466

from other kinds of aliens the bond statute is not “narrowly
tailored.” The district court did not address that argument;
it said nothing about the issue and simply instructed the IJ
to “consider petitioner’s request for a bond.”
  Velez-Lotero was released on “file custody review” by U.S.
Immigration and Customs Enforcement on November 26,
2004, after the government filed its brief in this court. In
his brief to this court, filed after his release, Velez-Lotero
did not respond to the government’s appeal of the district
court’s order on the bond issue, contending that by releasing
him the government has constructively abandoned the issue.
But at oral argument the government made clear that it has
not abandoned its appeal on the bond issue, as well it
should not, because if Velez-Lotero is detained again at
some point during remand proceedings (and we have not
been briefed on the terms and conditions of “file custody
review”) then the issue of bond eligibility will simply
reappear.
  The district court erred. Velez-Lotero is not eligible for a
bond hearing under 8 U.S.C. § 1226. The statute provides,
in relevant part:
     The Attorney General shall take into custody any alien
     who—
       ...
     (B) is deportable by reason of having committed any of-
     fense covered in section 1227(a)(2)(A)(ii) [crimes involv-
     ing moral turpitude], (A)(iii) [“Aggravated felony”] . . .
     when the alien is released, without regard to whether
     the alien is released on parole, supervised release, or
     probation, and without regard to whether the alien may
     be arrested or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(1) (emphasis added). The Supreme Court
has held that § 1226(c) “is a constitutionally permissible
part of the process.” Demore v. Kim, 538 U.S. 510, 531
No. 04-2466                                                 11

(2003); see also Gonzalez v. O’Connell, 355 F.3d 1010, 1019-
20 (7th Cir. 2004). The only exception to this provision is for
aliens admitted into the Witness Protection Program whom
the Attorney General is satisfied do not pose a danger to the
safety of persons or property and who are likely to appear
for their hearings. See 8 U.S.C. § 1226(c)(2). Velez-Lotero is
not in the Witness Protection Program. He is ineligible for
a bond hearing.
  For the foregoing reasons, we REVERSE the district court’s
grant of habeas relief on the question of Velez-Lotero’s
eligibility for a § 212(c) waiver. The district court’s order
regarding Velez-Lotero’s eligibility for bond is also
REVERSED. The case is REMANDED for further proceedings
consistent with this opinion.


A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                    USCA-02-C-0072—7-11-05
