                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      September 6, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    AN TON IO G AR CIA-OR TIZ,

             Petitioner,

    v.                                                    No. 05-9575
                                                       (No. A23 187 158)
    ALBERTO R. GONZALES, Attorney                     (Petition for Review)
    General,

             Respondent.




                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.




         Antonio Garcia-Ortiz petitions for review of a final order of the Board of

Immigration Appeals (BIA). The BIA’s order summarily adopted and affirmed a

decision of an immigration judge (IJ) that found M r. Garcia-Ortiz ineligible for




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
relief under former section 212(c) of the Immigration and Nationality Act, and

ordered him removed to M exico. W e deny the petition for review.

      M r. Garcia-Ortiz is a native and citizen of M exico. He entered this country

at El Paso, Texas on October 17, 1986, as an immigrant. On August 5, 1994, he

w as convicted in a C olorado state court of conspiracy to distribute marijuana. O n

November 14, 1994, he received a 45-day jail sentence and three years’ probation.

Although the documentary evidence in the record is unclear on this point, 1

M r. Garcia-Ortiz contends that he was convicted after a jury trial rather than as

the result of a guilty plea.

      M r. Garcia-Ortiz concedes that he is removable from this country as a

result of his drug trafficking conviction. He has, however, requested

discretionary withholding of deportation relief under former 8 U.S.C. § 1182(c)

(1994), known as “section 212(c) relief.” Former § 212(c) authorized “any

permanent resident alien with a lawful unrelinquished domicile of seven

consecutive years to apply for a discretionary waiver from deportation.” INS v.

St. Cyr, 533 U.S. 289, 295 (2001) (quotation omitted). An alien who had been

“convicted of one or more aggravated felonies and has served for such felony or




1
       The Alamosa County, Colorado form comm itment order indicates that on
August 5, 1994, M r. “Ortiz Garcia” was “found guilty of, or the court accepted
[his] plea of guilty or nolo contendere to” conspiracy to distribute marijuana.
Admin. R. at 69 (emphasis added).

                                         -2-
felonies a term of imprisonment of at least 5 years,” however, was ineligible for

§ 212(c) relief. 8 U.S.C. § 1182(c).

      The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

identified a broad category of offenses that would cause an alien to forfeit

eligibility for § 212(c) relief, including aggravated felonies and controlled

substance offenses. The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) subsequently abolished § 212(c) relief

altogether, and replaced it with a similar form of relief known as “cancellation of

removal.” See M ontenegro v. Ashcroft, 355 F.3d 1035, 1036 (7th Cir. 2004). A s

an alien convicted of an “aggravated felony,” M r. Garcia-Ortiz is ineligible for

IIRIRA’s cancellation of removal, even though he served less than five years’

imprisonment for his offense. See id. His drug conviction would not, however,

disqualify him from § 212(c) relief as it existed at the time of his conviction,

provided that such relief remains available to him notwithstanding the AED PA

modification and the IIRIRA repeal.

      M r. Garcia-Ortiz contends that he remains eligible for § 212(c) relief for

two reasons. First, he contends that the presumption against retroactive

legislation applies in his case, because aliens who went to trial prior to the

enactment of IIRIRA had a reasonable reliance interest in the continued

availability of § 212(c) relief. Second, he contends that denying § 212(c) relief to




                                          -3-
aliens like himself, who exercised their Sixth Amendment right to trial by jury,

violates the Equal Protection Clause.

      1. Presum ption against retroactive legislation

      In St. Cyr, the Supreme Court addressed the issue of w hether IIRIRA’s

repeal of § 212(c) relief applied retroactively to aliens w ho pled guilty to

aggravated felonies prior to the repeal. The Court concluded that in light of

(1) the absence of clearly-expressed Congressional intent to apply the repeal to

such aliens, and (2) the reasonable reliance interest in prior law possessed by such

aliens, demonstrated by their decision to plead guilty, they remained eligible for

§ 212(c) relief. 533 U.S. at 314-26.

      St. Cyr did not address the situation of aliens like M r. Garcia-Ortiz, who

proceeded to trial. Following the decision in St. Cyr, the Attorney General

adopted a regulation permitting aliens who had pleaded guilty or nolo contendere

to aggravated felonies prior to AEDPA ’s effective date to apply for § 212(c)

relief. 8 C.F.R. § 1212.3(h). This regulation further provides that “[a]liens are

not eligible to apply for section 212(c) relief under the provisions of this

paragraph with respect to convictions entered after trial.” Id. (emphasis added). 2

      In Hem v. M aurer, No. 05-9555, 2006 W L 2383281 (10th Cir. Aug. 18,

2006), however, we held that an alien who proceeded to trial rather than pleading



2
      W hile affirming summarily the IJ’s decision in this case, the BIA added a
succinct reference to § 1212.3(h) in its order. See Admin. R. at 2.

                                          -4-
guilty could still possess a sufficient objective reliance interest in § 212(c) relief

to avoid retroactive application of IIRIRA’s repeal of § 212(c). Id. at *15. Under

the objective reliance test, we focus on whether the class of aliens to which an

alien belongs had an objectively reasonable reliance interest that would be

adversely affected by a retroactive application of IIRIRA, not whether a particular

alien actually relied on the availability of § 212(c) relief. Id. at *14. The

petitioner in Hem met this objective reliance standard, because he belonged to the

class of aliens who forewent an appeal from their conviction after trial, thus

evidencing a reliance interest in § 212(c) relief. Id. at *15.

      M r. Garcia-Ortiz argues that he belongs, for purposes of this objective

reliance inquiry, to the class of aliens convicted of an aggravated felony who

went to trial rather than pleading guilty. He does not affirmatively argue that his

failure to appeal demonstrates objective reliance on the availability of § 212(c)

relief. M r. Garcia-Ortiz cites no authority indicating that exercising one’s Sixth

Amendment right to go to trial, by itself, constitutes a sufficient showing of an

objective reliance interest to foreclose a retroactive application of the § 212(c)

repeal. 3 See id. at *15 (stating aliens in Hem’s class, who forewent appeal, would



3
       The Third Circuit has held that aliens who chose to go to trial, and who
declined a plea bargain offered to them, demonstrated a sufficient reliance
interest to avoid retroactive application of the repeal. Ponnapula v. Ashcroft,
373 F.3d 480, 496 (3d Cir. 2004). M r. Garcia-Ortiz candidly admits, however,
that he does not recall whether he declined a plea bargain. Aplt. Opening Br. at
                                                                       (continued...)

                                          -5-
suffer new legal consequences from retroactive application because “the

availability of § 212(c) relief would reasonably inform their decision to forego a

constitutional right”) (emphasis added). W e therefore conclude that he has failed

to demonstrate objectively reasonable reliance on the continued availability of

§ 212(c) relief. See Hem, 2006 W L 2383281, at *15 (citing with approval

M ontenegro, 355 F.3d at 1037, to the effect that § 212(c) repeal was not

impermissibly retroactive with respect to aliens “who did not abandon rights or

admit guilt in reliance on continued eligibility for § 212(c) relief.”).

      2. Equal Protection issue

      M r. Garcia-Ortiz also argues that the agency’s decision in his case, and/or

the regulation implementing St. Cyr, 8 C.F.R. § 1212.3(h), violates the Equal

Protection Clause 4 because it burdens the exercise of a fundamental right by

penalizing those aliens w ho choose to exercise their Sixth Amendment right to



3
 (...continued)
13, 24.

       M r. Garcia-Ortiz also cites the Fourth Circuit’s opinion in Olatunji v.
Ashcroft, 387 F.3d 383 (4th Cir. 2004), which states that “reliance (whether
subjective or objective) is not a requirement of impermissible retroactivity.” Id. at
388. In adopting an objective reliance approach in Hem, we implicitly rejected
the no-reliance approach discussed in Olatunji. See Hem, 2006 W L 2383281, at
*3-*4.
4
      By its terms, the Fourteenth Amendment does not apply to this case, which
involves federal rather than state action. As M r. Garcia-Ortiz correctly notes,
however, the Fifth Amendment’s Due Process Clause also includes an equal
protection element. See, e.g., Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974).

                                          -6-
trial by jury. He contends that since the Supreme Court has granted relief to

aliens w ho pleaded guilty, the same relief must be granted to those who chose to

go to trial.

       M r. Garcia-Ortiz’s equal protection claim fails, because he has not

demonstrated any actual violation of his rights. Neither AEDPA nor IIRIRA

makes any distinction between aliens who have pleaded guilty and those who

chose to go to trial. The distinction has been created solely by judicial decisions

that have found a reliance interest in the former case, and not in the latter. This

distinction actually protects the values associated with the right to jury trial, by

forbidding retroactive loss of a benefit reasonably anticipated by that class of

aliens who gave up their valuable right to jury trial. M r. Garcia-Ortiz cites no

case finding an equal protection violation based on this sort of retroactivity

analysis, and we have found none.

       The existence of 8 C.F.R. § 1212.3(h), does not change our analysis. This

regulation merely codifies the decision in St. Cyr, by extending to aliens who

pleaded guilty (and, hence, demonstrated an objectively reasonable reliance

interest), an explicit opportunity to apply for § 212(c) relief. The fact that it does

not permit aliens who went to trial to apply for such relief “under the provisions

of this paragraph,” § 1212.3(h), does not affirmatively foreclose such aliens from

seeking § 212(c) relief by arguing that a sufficient objective reliance interest




                                          -7-
requires that the repeal should not be applied to them. Indeed, M r. Garcia-Ortiz

has made such an argument, albeit unsuccessfully, in this case.

      The petition for review is DENIED.



                                                    Entered for the Court


                                                    M ary Beck Briscoe
                                                    Circuit Judge




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