     05-2868-ag
     Perriello v. Napolitano


 1                        UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2008
 6
 7
 8   (Argued: June 2, 2009                   Decided: September 1, 2009)
 9
10                             Docket No. 05-2868-ag
11
12   - - - - - - - - - - - - - - - - - - - - - -x
13
14   SAVARIO PERRIELLO,
15
16                Petitioner,
17
18                -v.-                                     05-2868-ag
19
20   JANET NAPOLITANO; JOHN T. MORTON, Asst.
21   Secretary, United States Immigration and
22   Customs Enforcement; CHRISTOPHER SHANAHAN,
23   Field Office Director of New York City,
24   U.S. Immigration and Customs Enforcement,
25   Department of Homeland Security; UNITED
26   STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, *
27
28                Respondents.
29
30   - - - - - - - - - - - - - - - - - - - - - -x

31


            *
            Pursuant to Federal Rule of Appellate Procedure
     43(c)(2), Secretary Janet Napolitano of the Department of
     Homeland Security is automatically substituted for former
     Secretary Tom Ridge; Assistant Secretary John T. Morton of
     the Department of Homeland Security is automatically
     substituted for former Assistant Secretary Michael J.
     Garcia; and Field Office Director Christopher Shanahan is
     automatically substituted for former Field Office Director
     John P. Carbone as respondents in this case.
1        Before:       JACOBS, Chief Judge, KEARSE and SACK,
2                      Circuit Judges.
3
4        Petitioner Savario Perriello seeks review of a December

5    17, 2004 decision of the Board of Immigration Appeals

6    finding him ineligible for relief from removal.    Perriello

7    argues for termination of his removal proceedings pursuant

8    to 8 C.F.R. § 1239.2(f) and a waiver of inadmissibility

9    pursuant to former Immigration and Nationality Act § 212(c) .

10   The petition is denied.

11                                 MATTHEW L. GUADAGNO (Ruchi
12                                 Thaker, Jules E. Coven, Kerry W.
13                                 Bretz on the brief), Bretz &
14                                 Coven LLP, New York, New York,
15                                 for Petitioner .
16
17                                 NATASHA OELTJEN, Assistant
18                                 United States Attorney (Sarah S.
19                                 Normand, Assistant United States
20                                 Attorney on the brief) for Lev
21                                 L. Dassin, Acting United States
22                                 Attorney for the Southern
23                                 District of New York, New York,
24                                 New York , for Respondents.
25
26   DENNIS JACOBS, Chief Judge:
27
28       Petitioner Savario Perriello, a native and citizen of

29   Italy and a lawful permanent resident of the United States,

30   seeks review of a December 17, 2004 order of the Board of

31   Immigration Appeals (“BIA”) affirming the August 30, 2002

32   decision of Immigration Judge (“IJ”) Robert D. Weisel


                                    2
1    finding Perriello inadmissible and ordering him removed to

2    Italy.   In re Savario Perriello, No. A 12 363 855 (B.I.A.

3    Dec. 17, 2004), aff’g No. A 12 363 855 (Immig. Ct. N.Y. City

4    Aug. 30, 2002).   Perriello argues for termination of his

5    removal proceedings pursuant to 8 C.F.R. § 1239.2(f) 1 and a

6    waiver of inadmissibility pursuant to former Immigration and

7    Nationality Act (“INA”) § 212(c) .

8        We acknowledge the significant hardship that Perriello

9    and his family will face as a result of the unaccountable

10   delay in the decision to seek his removal decades after his

11   conviction, and notwithstanding his evidently lawful and

12   productive life in the interval.      Nonetheless, we conclude

13   that [i] Perriello is not entitled to relief under

14   § 1239.2(f) (which has been rendered vestigial by revisions

15   to the INA), because he has not established prima facie

16   eligibility for naturalization, and [ii] that he is barred

17   from relief under INA § 212(c) by virtue of § 511(a) of the

18   Immigration Act of 1990 (“IMMACT”), Pub. L. No. 101-649,

19   § 511(a), 104 Stat. 4978, 5052.      Accordingly, the petition

20   is denied.

21


          1
            Unless otherwise noted, all citations to statutes and
     regulations refer to the current versions as of the filing
     of this opinion.
                                   3
1                                 I

2        Perriello first entered the United States on December

3    27, 1961, when he was thirteen years old.    On December 28,

4    1977, Perriello was convicted by a jury of Arson in the

5    Second Degree in violation of New York Penal Law § 150.15

6    and eight counts of Criminal Mischief in the Second Degree

7    in violation of New York Penal Law § 145.10.    Perriello was

8    sentenced to a term of seven to twenty-five years in prison,

9    and he served seven years before his release on parole in

10   1984.

11       After his release from prison, Perriello started a

12   business and contributed to his community.   Perriello

13   married a United States citizen in 1991, and he has four

14   United States citizen children.   Perriello and his wife

15   operate a restaurant in Haverstraw, New York.

16       On November 28, 2000, Perriello was detained at Newark

17   Airport on his return from a brief trip to Italy.   The

18   Immigration and Naturalization Service (“INS”),2 having

19   discovered Perriello’s 1977 conviction, paroled him into the


             2
            Effective March 1, 2003, the INS ceased to exist.
     The Department of Homeland Security has assumed
     responsibility for the immigration functions formerly
     performed by INS. See Ali v. Mukasey, 529 F.3d 478, 482 n.4
     (2d Cir. 2008).

                                  4
1    country pending a determination of his admissibility.      On

2    February 13, 2001, the INS issued a Notice to Appear and

3    placed Perriello in removal proceedings based on his 1977

4    conviction for a crime involving moral turpitude.

5        Perriello admitted the allegations contained in the

6    Notice to Appear, but sought to avoid removal by filing an

7    application for naturalization and moving for termination of

8    his removal proceedings pursuant to 8 C.F.R. § 1239.2(f),

9    which permits an IJ to terminate removal proceedings while

10   an application for naturalization is pending.    The IJ

11   declined to terminate the removal proceedings and ordered

12   Perriello removed on August 30, 2002.    The BIA affirmed on

13   December 17, 2004.

14       On February 22, 2005, Perriello challenged the BIA’s

15   decision in a habeas corpus petition filed in the Southern

16   District of New York .   While the petition was pending,

17   Congress enacted section 106(a)(1) of the Real ID Act of

18   2005 (“Real ID Act”), Pub. L. No. 109-13, Div. B,

19   § 106(a)(1)(B), 119 Stat. 231, 310, which provides that “a

20   petition for review filed with an appropriate court of

21   appeals . . . shall be the sole and exclusive means for

22   judicial review of an order of removal.”    The district court


                                    5
1    transferred Perriello’s habeas petition to this Court

2    pursuant to Real ID Act § 106(c), which requires that any

3    habeas petition [i] challenging an order of removal, and

4    [ii] pending in district court on the date of the Act’s

5    enactment, be transferred to the appropriate court of

6    appeals.

7

8                                   II

9        By virtue of 8 C.F.R. § 1239.2(f), 3 an IJ may terminate

10   removal proceedings to permit an alien who has established

11   prima facie eligibility for naturalization to proceed to a

12   “final hearing” on a pending naturalization application.

13   The BIA has held, however, that an IJ may not terminate


          3
              The current text of the regulation is:

                An immigration judge may terminate
                removal proceedings to permit the alien
                to proceed to a final hearing on a
                pending application or petition for
                naturalization when the alien has
                established prima facie eligibility for
                naturalization and the matter involves
                exceptionally appealing or humanitarian
                factors; in every other case, the removal
                hearing shall be completed as promptly as
                possible notwithstanding the pendency of
                an application for naturalization during
                any state of the proceedings.

     8 U.S.C. § 1239.2(f).
                                    6
1    removal proceedings unless the alien has obtained an

2    affirmative communication from the Department of Homeland

3    Security (“DHS”) stating that the alien is prima facie

4    eligible for naturalization.    See In re Hidalgo, 24 I. & N.

5    Dec. 103, 106 (B.I.A. 2007) .   But nothing seems to compel

6    DHS to make such a determination, let alone to issue such a

7    communication.     Moreover, in many cases (including this

8    one), DHS is prohibited by statute from considering a

9    naturalization application (a prerequisite to determining

10   prima facie eligibility) while removal proceedings are

11   pending.   The law, in effect, seems to be chasing its tail.

12       We review de novo Perriello’s claim that the IJ and BIA

13   erred as a matter of law in denying relief from removal.

14   See, e.g., Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir.

15   2007).   But we owe deference to the BIA’s interpretation of

16   its own regulations, and the BIA’s interpretation will be

17   “controlling unless plainly erroneous or inconsistent with

18   the regulation.”    Auer v. Robbins, 519 U.S. 452, 461 (1997)

19   (internal quotation marks omitted); see also Bah v. Mukasey,

20   529 F.3d 99, 110-11 (2d Cir. 2008).

21       In order to analyze Perriello’s arguments and to

22   appreciate the anomaly that complicates the analysis, it is


                                     7
1    necessary to describe the evolution of the statutes and

2    regulations relevant to this appeal.

3    A.   Naturalization and Removal Law Before 1990

4         From 1906 until 1990, an application for naturalization

5    was reviewed in two stages.    See Etape v. Chertoff, 497 F.3d

6    379, 385 (4th Cir. 2007); Admin. Naturalization, 56 Fed.

7    Reg. 50475, 50476 (Oct. 7, 1991).     First, the Attorney

8    General considered the application and made a recommendation

9    to the naturalization court as to the alien’s prima facie

10   eligibility for naturalization.     See 8 U.S.C. § 1446(a)-(d)

11   (1988).   The second stage was a “final hearing” held “in

12   open court before a judge or judges.”     8 U.S.C. § 1447(a)

13   (1988).   Under this system, courts were vested with

14   “[e]xclusive jurisdiction to naturalize persons as citizens

15   of the United States.” 4   8 U.S.C. § 1421(a) (1988).

16        Until 1990, “naturalization authority and removal

17   authority were vested in different branches of government,

18   with naturalization being the province of the courts and


           4
             Courts with authority to naturalize aliens included
     United States district courts and “also all courts of record
     in any State or Territory . . . having a seal, a clerk, and
     jurisdiction in actions at law or equity, or law and equity,
     in which the amount in controversy is unlimited.” 8 U.S.C.
     § 1421(a) (1988).

                                    8
1    removal the province of the executive acting through the

2    Attorney General.”     Ajlani v. Chertoff, 545 F.3d 229, 235

3    (2d Cir. 2008).     Prior to 1950, this led to “both the

4    deportation and naturalization processes . . . proceed[ing]

5    along together until either petitioner’s deportation or

6    naturalization ipso facto terminated the possibility of the

7    other occurring.”     Shomberg v. United States, 348 U.S. 540,

8    543 (1955).

9        In 1950, Congress put an end to this “race between the

10   alien to gain citizenship and the Attorney General to deport

11   him,” id. at 544, by enacting section 27 of the Internal

12   Security Act of 1950, Pub. L. No. 81-831, § 27, 64 Stat.

13   987, 1015, reenacted without significant change by

14   Immigration and Nationality Act of 1952, Pub. L. No. 82-414,

15   § 318, 66 Stat. 163, 244 (codified as amended at 8 U.S.C.

16   § 1429).   That statute “afforded [priority to] removal

17   proceedings,” Ajlani, 545 F.3d at 239, and “prohibited

18   naturalization or the holding of final hearings on

19   naturalization petitions where deportation proceedings were

20   instituted,” Shomberg, 540 U.S. at 544.     As a result, aliens

21   who had successfully navigated the first stage of the

22   naturalization process, and were thus prima facie eligible


                                     9
1    for naturalization, were in limbo because courts were

2    prohibited from conducting final hearings on their

3    applications.   To provide such aliens access to court, the

4    BIA held, in Matter of B-, 6 I. & N. Dec. 713, 720 (B.I.A.

5    1955), that “there exists inherent authority in the Attorney

6    General to terminate deportation proceedings for the limited

7    purpose of permitting the alien to file a petition for

8    naturalization and to be heard thereon by a naturalization

9    court.”

10       In 1974, the BIA’s decision in Matter of B- was adopted

11   in the regulation now found at § 1239.2(f).   The regulation

12   provided, in relevant part:

13             A[n immigration judge] may, in his
14             discretion, terminate deportation
15             proceedings to permit respondent to
16             proceed to a final hearing on a pending
17             application or petition for
18             naturalization when the respondent has
19             established prima facie eligibility for
20             naturalization and the case involves
21             exceptionally appealing or humanitarian
22             factors; in every other case, the
23             deportation hearing shall be completed as
24             promptly as possible notwithstanding the
25             pendency of an application for
26             naturalization during any stage of the
27             proceedings.
28
29   8 CFR § 242.7 (1974).

30       Soon after, in Matter of Cruz, 15 I. & N. Dec. 236


                                   10
1    (B.I.A. 1975), the BIA considered the regulation’s

2    requirement that an alien “ha[ve] established prima facie

3    eligibility for naturalization.”   Id. at 236-38.     The BIA

4    held that “neither [it] nor immigration judges have

5    authority with respect to the naturalization of aliens,” and

6    concluded therefore that the alien must establish “prima

7    facie eligibility” by adducing “an affirmative communication

8    from the [INS] or . . . a declaration of a court that the

9    alien would be eligible for naturalization but for the

10   pendency of the deportation proceedings or the existence of

11   an outstanding order of deportation.”   Id. at 237.

12   B.   Naturalization and Removal Law After 1990

13        With the passage of IMMACT in 1990, Congress

14   substantially reformed the naturalization process.      Two

15   features of that reform are relevant to this case.      First,

16   IMMACT eliminated “final hearing[s] . . . in open court,”

17   IMMACT § 407(d)(14), 104 Stat. at 5044, and established that

18   “[t]he sole authority to naturalize persons as citizens of

19   the United States is conferred upon the Attorney General,”

20   id. § 401(a), 104 Stat. at 5038 (codified at 8 U.S.C.




                                   11
1    § 1421(a)).5   To implement this shift in authority, IMMACT

2    streamlined the naturalization process and provided for

3    comprehensive review of applications by immigration officers

4    empowered to grant or deny naturalization.   Id.

5    § 407(d)(13)(E), 104 Stat. at 5043 (codified at 8 U.S.C.

6    § 1446(d)); see also Etape, 497 F.3d at 385-86.

7        Second, IMMACT froze the processing of naturalization

8    applications while removal proceedings are pending.    Before

9    IMMACT, the Attorney General had an unrestricted ability to

10   review naturalization applications notwithstanding the

11   pendency of removal proceedings: only courts were prohibited

12   from conducting “final hearings.”   IMMACT, however, amended

13   § 1429 to provide that “no person shall be naturalized

14   against whom there is outstanding a final finding of

15   deportability . . . and no application for naturalization

16   shall be considered by the Attorney General if there is


          5
            IMMACT preserved a role for federal courts in the
     naturalization process: “after exhausting administrative
     remedies, [an alien] may petition for de novo review in the
     district court.” See Etape, 497 F.3d at 386 (citing 8
     U.S.C. § 1421(c)). An alien may also seek relief in
     district court if DHS fails to act on a naturalization
     application within 120 days of an alien’s examination by an
     immigration officer. See 8 U.S.C. § 1447(b). Additionally,
     naturalization courts continue to administer the oath of
     allegiance to new citizens. See 8 U.S.C. § 1421(b).

                                   12
1    pending against the applicant a [removal] proceeding.”

2    IMMACT § 407(d)(3), 104 Stat. at 5041 (codified as amended

3    at 8 U.S.C. § 1429 (Supp. II 1990)) (emphasis added).

4    C.   The Application of § 1239.2(f) After IMMACT

5         After IMMACT, courts considered the continued viability

6    of § 1239.2(f), as interpreted by the BIA in Cruz.      Several

7    circuit courts of appeal questioned whether the BIA could

8    continue to rely on courts to issue declarations as to prima

9    facie eligibility for naturalization in light of the

10   language in § 1421(a) granting the Attorney General

11   exclusive jurisdiction over naturalization applications.

12   See, e.g., Saba-Bakare v. Chertoff, 507 F.3d 337, 341 (5th

13   Cir. 2007); De Lara Bellajaro v. Schiltgen, 378 F.3d 1042,

14   1047 (9th Cir. 2004); Zayed v. United States, 368 F.3d 902,

15   907 & n.6 (6th Cir. 2004).   And at least one circuit

16   questioned whether the Attorney General could consider

17   naturalization applications for the limited, administrative

18   purpose of terminating removal proceedings in light of the

19   bar in § 1429.   Apokarina v. Ashcroft, 93 Fed. App’x 469,

20   470, 472 (3d Cir. 2004).

21        In 2007, the BIA reconsidered Cruz and overruled the

22   decision insofar as it contemplated that aliens would obtain


                                   13
1    declarations from courts as to prima facie eligibility for

2    naturalization.    Hidalgo, 24 I. & N. Dec. at 105.     The BIA

3    concluded that courts no longer had jurisdiction to provide

4    such declarations, in light of § 1421.    Id.

5         Nonetheless, the BIA reaffirmed its instruction that

6    “the Board and . . . Immigration Judges . . . require some

7    form of affirmative communication from the DHS prior to

8    terminating proceedings based on [an alien’s] pending

9    naturalization application.”    Id. at 106.     In doing so, the

10   BIA did not take into account IMMACT’s revisions to § 1429,

11   which limited administrative review of naturalization

12   applications while removal proceedings are pending.

13   Likewise, the Attorney General (and DHS) failed to conform

14   the antiquated language in § 1239.2(f), which has caused

15   inconsistency. 6   In some cases (such as this one), DHS has




          6
            In 1997, INS made technical changes to the language
     of the regulation after passage of the Illegal Immigration
     Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
     Pub. L. 104-208, Div. C, 110 Stat. 3009, 3009-546 et seq.
     Specifically, INS replaced the word “deportation” with the
     word “removal” in two places. Inspection and Expedited
     Removal of Aliens; Detention and Removal of Aliens; Conduct
     of Removal Proceedings; Asylum Procedures, 62 Fed. Reg.
     10312, 10367 (March 6, 1997). Although the agency revised
     the regulation to reflect changes in IIRIRA, it never
     revised the regulation in response to IMMACT, and the
     regulation remains inconsistent with that statute.

                                    14
1    adjudicated naturalization applications while aliens have

2    awaited termination of their removal proceedings,

3    notwithstanding the bar in § 1429.   See, e.g., Saba-Bakare,

4    507 F.3d at 339; Hidalgo, 24 I. & N. Dec. at 106-07.     In

5    other cases, IJs have determined prima facie eligibility for

6    naturalization, notwithstanding the BIA’s holding in Cruz

7    that they lack jurisdiction to do so.   See, e.g., Nolan v.

8    Holmes, 334 F.3d 189, 191-92 (2d Cir. 2003); Fretas v.

9    Hansen, No. 1:06CV1475, 2008 WL 4404276, at *1 (N.D. Ohio

10   Sep. 23, 2008).   And in yet other cases, no determination of

11   prima facie eligibility has been made by anybody, leaving

12   aliens to pursue writs of mandamus in an effort to compel

13   DHS to produce “affirmative statement[s]” as to prima facie

14   eligibility.   See, e.g., Sandoval-Valenzuela v. Gonzalez,

15   No. C 08-2361 RS, 2008 WL 3916030, at *1-2 (N.D. Cal. Aug.

16   25, 2008); Escobar-Garfias v. Gonzales, No. 06-CV-103-BR,

17   2007 WL 281657, at *2 (D. Or. Jan. 26, 2007); Fuks v.

18   Devine, No. 05 C 5666, 2006 WL 2051321, at *2-4 (N.D. Ill.

19   July 20, 2006).

20       One of these cases is edifying, at least to illustrate

21   the prevailing muddle.   A writ of mandamus was sought “to

22   the Attorney General, ordering him to perform his legal duty


                                   15
1    and prevent different parts of the Department of Justice

2    from adopting conflicting view[s] of Cruz.”    Fretas, 2008 WL

3    4404276, at *2.   The alien sought this relief after DHS

4    concluded that it lacked jurisdiction over Fretas’

5    application because of § 1429, but nonetheless advised that

6    Fretas was not prima facie eligible for naturalization.     Id.

7    An IJ had previously ruled that Fretas was prima facie

8    eligible for naturalization, but the BIA reversed, holding

9    that Cruz prohibited the IJ from making that determination.

10   Id. at *1.

11   D.   Perriello’s Motion to Terminate Removal Proceedings

12        In this case, the IJ denied Perriello’s motion to

13   terminate the removal proceedings on the ground that he had

14   not obtained an “affirmative communication from [INS]

15   regarding [his] naturalization eligibility.”    But the agency

16   could not provide an “affirmative communication,” because

17   § 1429 prohibited it from considering Perriello’s

18   naturalization application while removal proceedings were

19   pending.

20        The effect of IMMACT is that aliens can no longer do

21   what Perriello did in this case: apply for naturalization

22   after removal proceedings have commenced and then move for


                                   16
1    termination of the removal proceedings. 7    Once removal

2    proceedings are in progress, DHS is barred by IMMACT from

3    considering an alien’s application; so it will be impossible

4    for an alien to establish prima facie eligibility for

5    naturalization. 8

6         Perriello argues that it is unnecessary for him to

7    obtain a statement from DHS, because IJs and the BIA may

8    make prima facie determinations as to eligibility for

9    naturalization.     Perriello is mistaken for two reasons.

10        First, the BIA determined in Hidalgo that it and IJs

11   lack jurisdiction to make prima facie determinations of

12   eligibility for naturalization.      The BIA’s conclusion is

13   consistent with § 1421(a), which states that “[t]he sole

14   authority to naturalize persons as citizens of the United

15   States is conferred upon the Attorney General.”      We owe


          7
            In Nolan, 334 F.3d at 193-204, we considered the
     petitioner’s prima facie eligibility for naturalization. In
     Nolan, neither party raised the question whether IMMACT
     limited our review, and the question therefore was not
     considered, let alone decided. Moreover, Nolan involved an
     application for naturalization under INA § 329, which
     exempts veterans who have served during periods of military
     hostilities from the bar in § 1429. See 8 U.S.C.
     § 1440(b)(1).
          8
            We need not decide on this appeal whether, and in
     what circumstances, an alien could benefit from § 1239.2(f)
     if she has a naturalization application pending at the time
     removal proceedings commence.
                                     17
1    deference to the BIA’s conclusions about the scope of its

2    jurisdiction under the immigration laws, and the BIA’s

3    holding is neither “plainly erroneous [n]or inconsistent

4    with the regulation.”     Auer, 519 U.S. at 461 (internal

5    quotation marks omitted).

6        Second, the plain language of § 1429 prohibits the

7    Attorney General from considering naturalization

8    applications while removal proceedings are pending, and we

9    have held that “district court authority [under 8 U.S.C.

10   § 1447(b)] to grant naturalization relief while removal

11   proceedings are pending cannot be greater than that of the

12   Attorney General,” Ajlani, 545 F.3d at 240.     It would be odd

13   if the Attorney General and district courts were barred from

14   considering naturalization applications while removal

15   proceedings are pending, yet the BIA and IJs--who have no

16   jurisdiction over such applications in any case--were not.

17       Perriello also argues that this Court should not

18   interpret the regulation in a way that restricts its benefit

19   to aliens.   But it is not a judicial role to save a

20   regulation that now conflicts, at least in part, with the

21   underlying statute.     As reflected in federal court decisions

22   around the country, the failure of DHS to amend § 1239.2(f)

                                     18
1    has made for considerable confusion.   It is for DHS or

2    Congress to reconcile the regulation with the INA.

3         For the foregoing reasons, we affirm the denial of

4    relief under § 1239.2(f), on the ground that Perriello has

5    not (and cannot) establish prima facie eligibility for

6    naturalization. 9

7

8                                 III

9         Perriello also claims that he is eligible for a waiver

10   of inadmissibility pursuant to former INA § 212(c).   That

11   section provided that:

12             Aliens lawfully admitted for permanent
13             residence who temporarily proceeded
14             abroad voluntarily and not under an order
15             of deportation, and who are returning to
16             a lawful unrelinquished domicile of seven
17             consecutive years, may be admitted in the
18             discretion of the Attorney General


          9
            Perriello points out that DHS’s denial of his
     naturalization application (while his appeal was pending
     before the BIA) was without prejudice, and argues that the
     willingness to leave open the prospect of future proceedings
     amounts to an affirmative statement that he is prima facie
     eligible for naturalization. Accordingly, he contends that
     the BIA should have remanded his motion for termination of
     the removal proceedings to the IJ for further consideration.
     But especially considering that DHS was prohibited from
     ruling on Perriello’s naturalization application while
     removal proceedings were pending, denial without prejudice
     does not signify a ruling on prima facie eligibility one way
     or another.

                                  19
1             without regard to the provisions [setting
2             forth various grounds for exclusion].
3
4    Buitrago-Cuesta v. I.N.S., 7 F.3d 291, 292 (2d Cir. 1993)

5    (quoting 8 U.S.C. § 1182(c)).

6        However, the class of aliens eligible for relief under

7    § 212(c) was narrowed by IMMACT § 511(a), 104 Stat. at 5052,

8    which precludes an alien who has “been convicted of an

9    aggravated felony and has served a term of imprisonment of

10   at least 5 years” from relief under § 212(c).         In

11   Buitrago-Cuesta, we ruled that § 511(a) applies

12   retroactively to aliens convicted of aggravated felonies

13   before the statute was enacted.      7 F.3d at 295.        “[T]he

14   plain language of the statute indicates a congressional

15   intent that § 511 apply retroactively.”      Id.

16       Perriello argues that under Restrepo v. McElroy, 369

17   F.3d 627 (2d Cir. 2004), his reliance on the continuing

18   availability of § 212(c) during the period between his

19   release from prison and the enactment of § 511(a) precludes

20   the retroactive application of § 511(a) in his case.

21   Restrepo held that ambiguity in the Antiterrorism and

22   Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

23   110 Stat. 1214--which barred certain aliens, including those

24   convicted of aggravated felonies, from obtaining § 212(c)



                                     20
1    relief--precludes retroactive application of that statute to

2    aliens who delayed proactively seeking § 212(c) relief

3    because they believed such relief would be available in the

4    future.   369 F.3d at 638.

5        Restrepo is of no help to Perriello, because we held in

6    Buitrago-Cuesta that § 511(a) unambiguously applies

7    retroactively.10   7 F.3d at 295; see also Singh v. Mukasey,

8    520 F.3d 119, 123 (2d Cir. 2008) (per curiam) (restating

9    Buitrago-Cuesta’s holding “that the plain language of IMMACT

10   indicates a congressional intent that § 511 apply

11   retroactively” (internal quotation marks and brackets

12   omitted)); Thom v. Ashcroft, 369 F.3d 158, 163 n.7

13   (observing that Restrepo had no impact on Buitrago-Cuesta’s

14   holding with respect to aliens convicted after trial); Reid

15   v. Holmes, 323 F.3d 187, 188 (2d Cir. 2003) (per curiam)

16   (noting that Buitrago-Cuesta “clearly established that

17   § 511(a) of the Immigration Act of 1990 could be applied

18   retroactively to aliens whose criminal convictions pre-dated


          10
            Restrepo itself did not involve §   511(a), presumably
     because “[t]he record d[id] not indicate   the length of
     [Restrepo’s] term of imprisonment.” 369    F.3d at 630 n.1.
     Also, Restrepo was convicted in 1992 and   INS initiated
     removal proceedings in 1996, id. at 630,   which was too soon
     for the agency to rely on § 511(a).

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1   the statute’s enactment”).   When a statute is unambiguous,

2   we are bound by the clear intent of Congress.   See Landgraf

3   v. USI Film Prods., 511 U.S. 244, 280 (1994) (holding that

4   courts must defer to express congressional prescriptions in

5   determining the retroactivity of civil statutes).   We

6   conclude that Restrepo is inapplicable to an alien convicted

7   of an aggravated felony at trial who is barred by § 511(a)

8   from obtaining § 212(c) relief.11

9       For the foregoing reasons, the petition is denied.




         11
           Because Perriello was convicted after a jury trial,
    we express no view as to the possible retroactivity of
    § 511(a) to aliens who were convicted pursuant to plea
    agreements. See 8 C.F.R. § 1212.3(f)(4)(ii) (“An alien is
    not ineligible for section 212(c) relief on account of an
    aggravated felony conviction entered pursuant to a plea
    agreement that was made before [the enactment of
    § 511(a)].”).

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