                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 02-3378
                               ________________

Salvador Torres-Rascon,                  *
                                         *
            Appellant,                   *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Western District of Missouri.
Michael Heston, District Director        *
of Kansas City District Office of        *
Immigration and Naturalization           *
Service; James W. Ziglar,                *
Commissioner of Immigration and          *
Naturalization Service; John             *
Ashcroft, Attorney General of the        *
United States,                           *
                                         *
            Appellees.                   *

                               ________________

                               Submitted: March 10, 2003
                                   Filed: July 3, 2003
                               ________________

Before HANSEN, Chief Judge,1 RILEY and MELLOY, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.


      1
        The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
       Salvador Torres-Rascon is a Mexican citizen who entered the United States in
1965 and became a lawful permanent resident. In 1991, he pleaded guilty to federal
charges of distributing and conspiring to distribute cocaine, and he was sentenced to
ninety-seven months in prison. When Torres-Rascon was released from prison in
1998 after serving seventy-eight months of his sentence, he was taken into custody
by the Immigration and Naturalization Service, which initiated proceedings to remove
him based on these convictions.

       The immigration judge (IJ) found that Torres-Rascon was removable, and that
he was ineligible for a waiver of removal under 8 U.S.C. § 1182(c) (1994) because
he had been convicted of aggravated felonies for which he had served more than five
years in prison. Torres-Rascon appealed to the Board of Immigration Appeals (BIA),
arguing that he was eligible for a § 1182(c) waiver under INS v. St. Cyr, 533 U.S. 289
(2001). The Board rejected his argument and dismissed his appeal. Torres-Rascon
renewed this argument in a 28 U.S.C. § 2241 petition for a writ of habeas corpus,
which the district court2 denied. He now appeals, and for the reasons discussed
below, we affirm the judgment of the district court.

                                           I.

       St. Cyr held that, in enacting the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Congress prospectively eliminated aliens'
eligibility for § 1182(c) waivers but did not retroactively eliminate the eligibility of
aliens who pleaded guilty prior to IIRIRA. The record in the instant case clearly
shows that the IJ and the BIA complied with St. Cyr by evaluating Torres-Rascon's
eligibility for a § 1182(c) waiver under the version of the law in effect at the time of
his guilty plea, which provided that he was ineligible because he had been "convicted


      2
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
                                           2
of one or more aggravated felonies and ha[d] served for such felony or felonies a term
of imprisonment of at least 5 years." 8 U.S.C. § 1182(c) (1994).

       Torres-Rascon argues, however, that St. Cyr did more than hold that IIRIRA
did not retroactively eliminate § 1182(c) waivers. He focuses on the Supreme Court's
statement that § 1182(c) waivers remain available for aliens "whose convictions were
obtained through plea agreements and who, notwithstanding those convictions, would
have been eligible for [§ 1182(c) waivers] at the time of their plea under the law then
in effect." St. Cyr, 533 U.S. at 326. According to Torres-Rascon, this passage means
that an alien who had not served five or more years in prison for an aggravated felony
by the time of his guilty plea remains eligible for a § 1182(c) waiver even if he has
served five or more years in prison for the aggravated felony by the time he is
subjected to removal proceedings and requests the waiver.

       We think that Torres-Rascon reads the St. Cyr passage completely out of
context and urges an absurd reading of § 1182(c). Under his reading, there would be
only two groups of aliens ineligible for a waiver: (1) those who had already served
five years or more in prison for an aggravated felony before pleading guilty to that
aggravated felony, and (2) those who had served five years or more in prison for an
earlier aggravated felony and then pleaded guilty to another aggravated felony which
led to their removal. We are aware of nothing in the statutory language, legislative
history, or interpretive caselaw suggesting that Congress meant to restrict ineligibility
only to aliens who languished in prison for five years or more before entering their
guilty pleas (which we hope is a small group indeed) and aliens who were convicted
of multiple aggravated felonies. We think that the commonsensical reading of
§ 1182(c) is the correct one: an alien like Torres-Rascon is ineligible for a waiver
because he was convicted of aggravated felonies for which he had served more than
five years in prison by the time he was subjected to removal proceedings and
requested the waiver.



                                           3
       In addition to St. Cyr, Torres-Rascon relies on In re Ramirez-Somera, 20 I&N
Dec. 564 (BIA 1992). There, the BIA held that an alien who pleaded guilty to an
aggravated felony and was sentenced to five or more years in prison, but who had
served less than five years in prison by the time of his removal hearing, remained
eligible for a § 1182(c) waiver. See id. at 566. Ramirez-Somera's holding does not
help Torres-Rascon, who had served more than five years of his prison sentence by
the time of his removal hearing and was therefore ineligible for a § 1182(c) waiver.
In fact, Ramirez-Somera undercuts Torres-Rascon's argument because, in that case
as in this case, the BIA looked to the amount of imprisonment the alien had served
by the time of his removal hearing, not by the time of his guilty plea.

                                        II.

      Accordingly, we affirm the judgment of the district court.



      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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