                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                  F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                 November 30, 2004
                                 FOR THE FIFTH CIRCUIT                      Charles R. Fulbruge III
                                                                                    Clerk


                                        No. 03-50907



          OLGA LIDIA GARCIA,

                                                         Petitioner-Appellant,

                                            versus

          KENNETH PASQUARELL, District Director,
          Immigration and Naturalization Service,

                                                         Respondent-Appellee.


                      Appeal from the United States District Court for
                               the Western District of Texas
                               (USDC No. A-03-CV-92-JN)
              _______________________________________________________


Before REAVLEY, JONES and DENNIS, Circuit Judges.

REAVLEY, Circuit Judge:*

          Olga Garcia appeals the district court judgment denying habeas corpus relief. We

affirm.




          *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
       Garcia was ordered deported by an immigration judge and that order was affirmed

by the Board of Immigration Appeals (BIA). Garcia argues that she would have been

eligible for discretionary relief from removal but for the BIA’s ruling that she was

ineligible for such relief because she committed an aggravated felony. See 8 U.S.C. §

1229b(a)(3).

       In 2000, Garcia pleaded guilty to felony possession of a controlled substance in

state court. The BIA correctly ruled that a state court drug possession felony was an

aggravated felony. Under the Immigration and Nationality Act, an aggravated felony

includes “a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. §

1101(a)(43)(B). In United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), we

held that, for purposes of the immigration laws, an aggravated felony includes a state

court drug possession felony if the state offense is also punishable under the federal

Controlled Substances Act (CSA). Notwithstanding Garcia’s arguments to the contrary,

this holding is not dicta and Hernandez-Avalos is directly on point.

       Garcia argues that Hernandez-Avalos should not be applied retroactively. She

points out that, at the time she pleaded guilty, the BIA was still following its own

administrative precedents holding that a state drug felony is not an aggravated felony

unless that crime is also a felony under the CSA. As we understand Garcia’s position, it

is premised on her arguments that (1) Hernandez-Avalos announced a new rule of law,

(2) she had relied on earlier, contrary law in pleading guilty, and (3) applying Hernandez-

Avalos retroactively in these circumstances would amount to a denial of due process or

                                             2
otherwise lead to a fundamentally unfair result. We find none of these arguments well

taken.

         First, Hernandez-Avalos did not announce a new rule in this circuit. We had

previously held, years before Garcia pleaded guilty, that a state drug felony is a “drug

trafficking crime” under 18 U.S.C. § 924(c). United States v. Hinojosa-Lopez, 130 F.3d

691, 693-94 (5th Cir. 1997). While Hinojosa-Lopez arose under the Sentencing

Guidelines rather than the immigration laws, it involved the same question of whether a

“drug trafficking crime” described in § 924(c) includes a state felony punishable under

the CSA. As we stated in Hernandez-Avalos, the inquiry “involves the same words of the

same phrase from the same statute that is being interpreted in each instance.” 251 F.3d at

509. We held “that the statutory language is clear—and is the same—whether applied in

sentencing or immigration cases.” Id. at 510. Whether or not the BIA had taken a

contrary position, the Fifth Circuit’s view on this question of law prevails over the views

of the BIA in this circuit. Id. at 508 n.2. Furthermore, we had held, in March 2000,

before Garcia pleaded guilty, that the definitions of “aggravated felony” under the

immigration laws and the Sentencing Guidelines are the same. Ruiz-Romero v. Reno,

205 F.3d 837, 839-40 (5th Cir. 2000). Ruiz-Romero concerned whether a certain alien

smuggling offense was an aggravated felony.

         Even if Hernandez-Avalos announced a new rule, retroactive application of

judicial decisions is “overwhelmingly the norm,” and any exceptions to this rule that

might still exist are limited to the “extremely unusual and unforeseeable case.” Hulin v.

                                             3
Fibreboard Corp., 178 F.3d 316, 330 n.7 & 333 (5th Cir. 1999) (quoting James B. Beam

Distilling Co. v. Georgia, 501 U.S. 529, 535 (1991)). Hernandez-Avalos cannot be

described as extremely unusual and unforeseeable. If it announced a new rule at all, that

rule was an entirely predictable extension of Hinojosa-Lopez.

       Further, reliance alone on existing precedent does not foreclose retroactive

application of a new rule of law announced by judicial decision. Hulin, 178 F.3d at 333

(quoting Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (U.S. 1995)). Garcia fails

to persuade us of any circumstances in addition to her alleged reliance that compel us to

stray from the general rule that judicial decisions are applied retroactively. “The general

principle that statutes operate prospectively and judicial decisions apply retroactively

ha[s] been followed by the common law and the Supreme Court’s decisions ‘for near a

thousand years.’” Hulin, 178 F.3d at 329 (quoting Kuhn v. Fairmont Coal Co., 215 U.S.

349, 372 (1910) (Holmes, J., dissenting)).

       Moreover, even if reliance on existing precedents could work an exception to the

general rule of retroactivity, Garcia failed to demonstrate that she in fact relied on the

contrary administrative decisions. An affidavit from Garcia states that she relied on

counsel in pleading guilty, but does not state that she discussed with her lawyer the effect

of her guilty plea on her immigration status. Her criminal lawyer told her lawyer in the

pending proceeding that “he thought Ms. Garcia might be eligible for some form of relief

in deportation proceedings and that this affected his decision to recommend that she

accept a sentence of ten years probation.” This amorphous “thought” that Garcia “might”

                                              4
be eligible “for some form” of relief from deportation strikes us as wholly inadequate to

support habeas corpus relief. There is no evidence in the record that Garcia or her

counsel had the vaguest familiarity with the administrative decisions on which she now

relies and the contrary decision of the Fifth Circuit in Hinojosa-Lopez.

       In INS v. St. Cyr, 533 U.S. 289 (U.S. 2001), the Court held, in a habeas

proceeding, that a statutory repeal of discretionary relief from deportation did not apply

retroactively. We do not view St. Cyr as applicable to the pending case involving judicial

retroactivity. Even if the reasoning of St. Cyr should inform the due process question in

the pending case, the Court in St. Cyr stated that it was guided by considerations of

“reasonable reliance” and “settled expectations.” Id. at 321 (citations and internal

quotation marks omitted). If Garcia had established reliance on the administrative

decisions, which she did not, that reliance cannot be described as reasonable or consistent

with settled expectations, since at the time she pleaded guilty the Fifth Circuit had held in

Hinojosa-Lopez that a state drug possession felony was an aggravated felony under §

924(c).

       AFFIRMED.




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