     07-4629-ag
     Johnson v. Holder

 1                         UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                     -------------
 6
 7                                   August Term 2008
 8
 9   Argued: October 22, 2008                   Decided: April 15, 2009
10
11                                 Docket No. 07-4629-ag
12
13   --------------------------------------------------X
14
15   NORMA CHRISTINA DRUMMOND DE JOHNSON,
16
17                                    Petitioner,
18
19                   - against -
20
21   ERIC H. HOLDER JR.1,
22
23                                    Respondent.
24
25   --------------------------------------------------X
26
27           Before:      FEINBERG, POOLER, and WESLEY, Circuit Judges.
28
29        Petition for review by alien of a decision of the Board of
30   Immigration Appeals denying her motion to reopen deportation
31   proceeding in order to seek discretionary relief pursuant to §
32   212(c) of the Immigration and Naturalization Act. Denied.
33
34                        MARCUS P. SMITH, Law Student Intern, supervised
35                             by Brett Dignam, Jerome N. Frank Legal
36                             Services Organization, Yale Law School, New
37                             Haven, CT.
38
39                        CHARLES CANTER, Office of Immigration Litigation,
40                             Civil Division, United States Department of
41                             Justice,   Washington,   D.C.  (Gregory   G.
42                             Katsas, Acting Assistant Attorney General,


              1
            Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
      Attorney General Eric H. Holder Jr. is automatically substituted
      for Michael B. Mukasey as respondent in this case.
 1                       Civil Division; Blair O’Connor, Senior
 2                       Litigation Counsel; Cindy S. Ferrier, Senior
 3                       Litigation Counsel, Office of Immigration
 4                       Litigation, Civil Division, Unites States
 5                       Department of Justice; on the brief), for
 6                       Respondent.
 7
 8
 9   FEINBERG, Circuit Judge:

10        Petitioner Norma Cristina Drummond de Johnson challenges a

11   decision of the Board of Immigration Appeals (“BIA”) denying

12   her motion to reopen a deportation proceeding against her. We

13   are bound by the decision of an earlier panel of this Court in

14   this very case, and we therefore deny Johnson’s petition.

15

16   I.   BACKGROUND

17        Johnson is a native and citizen of Panama. She entered the

18   United States in 1975 as a lawful permanent resident following

19   her marriage to a United States citizen. In 1995, following the

20   death of her husband, Johnson was convicted by a federal jury

21   in the Middle District of Tennessee of possession and

22   conspiracy to possess a controlled substance with the intent to

23   distribute in violation of 21 U.S.C. §§ 841(a)(1), 846.2 In

24   August 1995, she was sentenced to 188 months in prison.



           2
            In 1994, police in Clarksville, Tennessee found 8.5 kg of
      cocaine and 1.8 kg of marijuana hidden in the panels of a van
      driven by Johnson. According to police, Johnson admitted she had
      knowingly driven the drugs from California to Tennessee for a
      co-conspirator and that she had made approximately seven
      previous trips for the same purpose.

                                   -2-
 1        In December 1996, the Immigration and Naturalization

 2   Service notified Johnson that it would seek to deport her

 3   pursuant to Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of

 4   the Immigration and Naturalization Act (INA). Deportation

 5   proceedings began in January 1997 and in October 1997, the

 6   immigration judge (IJ) ordered Johnson deported to Panama.

 7        Shortly thereafter, Johnson appealed the IJ’s decision to

 8   the Board of Immigration Appeals (BIA). After a procedural

 9   remand, the BIA eventually denied Johnson relief.

10        In 2005, with the help of new counsel, Johnson moved to

11   reopen her case before the BIA on the ground that she was

12   eligible for a discretionary waiver of deportation pursuant to

13   § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996)

14   (hereafter “§ 212(c)”).

15        Until 1996, § 212(c) provided discretionary relief from

16   deportation for aliens who 1) were lawful permanent residents,

17   2) had resided in the United States for at least seven years,

18   and 3) had not served five or more years imprisonment on an

19   aggravated felony. See Walcott v. Chertoff, 517 F.3d 149, 151

20   (2d Cir. 2008). An application for § 212(c) relief could either

21   be made affirmatively, before the initiation of deportation

22   proceedings, or defensively, once proceedings were underway.

23   See 8 C.F.R. § 212.3(b). The equitable factors determining

24   whether discretionary relief should be granted included


                                   -3-
 1   duration of residency in the United States, proof of

 2   rehabilitation, and the recency of the criminal conviction. See

 3   Restrepo v. McElroy, 369 F.3d 627, 634 (2d Cir. 2004). As a

 4   result, aliens “would be motivated to wait as long as possible

 5   to file a 212(c) application in the hope that [they] could

 6   build a better case for relief,” because an application grew

 7   stronger with the passage of time. Id.

 8        In 1996, Congress enacted two laws restricting the

 9   availability of this relief. The first, § 440 of the

10   Antiterrorism and Effective Death Penalty Act (“AEDPA”),

11   partially repealed § 212(c) relief for aliens who had been

12   convicted of an aggravated felony. Pub.L. No. 104-132, 110

13   Stat. 1214, 1277 (Apr. 24, 1996). The second, § 304(b) of the

14   Illegal Immigration Reform and Immigrant Responsibility Act

15   (“IIRIRA”), repealed   § 212(c) in its entirety. Pub.L. No. 104-

16   208, 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996). The two

17   repealing statutes also differed in that AEDPA took effect

18   immediately upon enactment, while IIRIRA’s effective date

19   followed its enactment by six months. Johnson’s deportation

20   proceeding began after the AEDPA repeal, but before the IIRIRA

21   repeal took effect, so her case is governed only by AEDPA.

22        The application of AEDPA and IIRIRA to petitioners,

23   including Johnson, whose criminal convictions occurred before

24   the repeals took effect has been the subject of a number of


                                    -4-
 1   opinions in this Court and in the United States Supreme Court.

 2   In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held

 3   that application of the IIRIRA repeal to aliens who pled guilty

 4   to deportable offenses prior to the repeal would be

 5   impermissibly retroactive. The Court reasoned that the decision

 6   to plead guilty and accept a sentence that would leave the

 7   alien eligible for § 212(c) relief was likely to have been made

 8   in reliance on the continuing availability of § 212(c). Id. at

 9   323. Because the IIRIRA repeal upset the expectation underlying

10   the decision to plead guilty, the Court concluded, it “clearly

11   attaches a new disability, in respect to transactions or

12   considerations already past.” Id. at 321 (internal quotation

13   marks omitted). Thus, the repeal had “an obvious and severe

14   retroactive effect” because aliens who pled guilty “almost

15   certainly relied upon [the availability of § 212(c)] in

16   deciding whether to forgo their right to a trial.” Id. at 325.

17   Consequently, the Court found the IIRIRA repeal did not bar the

18   petitioner in St. Cyr from seeking § 212(c) relief, because

19   “[a] statute may not be applied retroactively . . . absent a

20   clear indication from Congress that it intended such a result.”

21   Id. at 316.

22        While St. Cyr settled that § 212(c) relief remained

23   available to aliens who pled guilty, this Court has since

24   repeatedly grappled with the question of when such relief


                                   -5-
 1   remains available to aliens convicted at trial. We have held

 2   that while the decision to go to trial, unlike the decision to

 3   plead guilty, does not make application of the repeals

 4   retroactive, see Rankine v. Reno, 319 F.3d 93, 100 (2d Cir.

 5   2003), an alien who was convicted at trial may nonetheless

 6   demonstrate retroactivity if she decided against making an

 7   immediate application for § 212(c) relief in reliance on its

 8   continuing availability, see Restrepo, 369 F.3d at 637.

 9   Restrepo left open, however, whether there should be a

10   categorical presumption (as in St. Cyr.) that an alien who was

11   eligible to make an affirmative application prior to the

12   repeals but did not do so relied on the continuing availability

13   of § 212(c), or whether she should be required to make an

14   individualized showing of reliance. See Restrepo, 369 F.3d at

15   640.

16          Such was the state of the law in this circuit when Johnson

17   filed her 2005 motion to reopen her case. The BIA denied the

18   motion in a July 2005 order, concluding that Johnson had not

19   made out a Restrepo claim because she failed to make an

20   individualized showing of reliance. Johnson then filed her

21   first petition for review in this Court. A panel of this Court,

22   which for purposes of clarity we call the “Johnson I panel,”

23   heard oral argument in August 2006.




                                     -6-
 1        In December 2006, while Johnson’s petition remained

 2   pending, another panel of this Court decided Wilson v.

 3   Gonzales, 471 F.3d 111 (2d Cir. 2006). Wilson held that in

 4   order to succeed in a Restrepo claim, an immigrant subject to

 5   the IIRIRA repeal had to show individualized reliance on the

 6   continuing availability of § 212(c). Wilson, 471 F.3d at 117.

 7   Four days later, the government filed a letter with the Johnson

 8   I panel pursuant to FRAP 28(j) (the “28(j) letter”). In the

 9   letter, the government argued that Wilson had decided the

10   question left open by Restrepo and had rejected Johnson’s

11   argument that she need not make an individualized showing of

12   reliance. Johnson filed no response. In February 2007, the

13   Johnson I panel issued a summary order remanding Johnson’s case

14   to the BIA to determine whether she could make the “requisite

15   showing of individualized reliance.” Johnson v. Gonzales, 218

16   F. App’x 40, 41 (2d Cir. 2007)(“Johnson I”).3

17        On remand before the BIA, Johnson argued that Wilson did

18   not control. The BIA, noting the specific instructions of this

19   Court to apply Wilson, in a September 2007 order rejected the

20   argument and again denied Johnson’s motion to reopen. Johnson




           3
            Johnson petitioned for panel rehearing and rehearing en
      banc, pressing essentially the same argument she now makes.
      These petitions were denied.

                                   -7-
 1   now petitions this Court for review of the BIA decision, and

 2   she does so before still another panel.

 3

 4   II.   Discussion

 5         Johnson argues that the Wilson individualized reliance

 6   standard should not be applied to her case, because while the

 7   petitioner in Wilson was subject to the IIRIRA repeal, Johnson

 8   was subject only to the earlier AEDPA repeal. This is

 9   important, she contends, because while IIRIRA gave affected

10   aliens six months notice that a repeal of § 212(c) was coming,

11   AEDPA took effect immediately upon its enactment. She argues

12   that the absence of a notice period in which to make an

13   affirmative application makes it more likely that an AEDPA

14   petitioner was delaying her application in reliance on the

15   continuing availability of § 212(c). Johnson claims that this

16   justifies a categorical presumption of reliance. We do not

17   reach the merits of Johnson’s argument because the law of the

18   case doctrine compels us to follow our earlier ruling in

19   Johnson I that she must make an individualized showing of

20   reliance.

21         The law of the case doctrine commands that “when a court

22   has ruled on an issue, that decision should generally be

23   adhered to by that court in subsequent stages in the same case”

24   unless “cogent and compelling reasons militate otherwise.”


                                    -8-
 1   United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)

 2   (internal quotation marks omitted). Johnson argues that the law

 3   of the case is not implicated because Wilson was decided after

 4   briefing and oral argument in Johnson I. She contends that her

 5   claim that Wilson does not govern AEDPA petitioners “has not

 6   been addressed” by this Court. Therefore, she argues, the

 7   court’s order in Johnson I applying Wilson does not constitute

 8   the law of the case.

 9        This argument mischaracterizes the law of the case

10   doctrine as it is understood in this circuit. Where “an issue

11   was ripe for review at the time of an initial appeal but was

12   nonetheless foregone, it is considered waived and the law of

13   the case doctrine bars . . . an appellate court in a subsequent

14   appeal from reopening such issues.” Quintieri, 306 F.3d at 1229

15   (internal quotation marks omitted). Johnson had ample

16   opportunity to make her current argument to the Johnson I panel

17   after it received the government’s 28(j) letter in December

18   2006. Indeed, that panel waited more than two months after

19   Wilson was decided before issuing its summary order. The

20   28(j)letter put Johnson on notice that Wilson arguably governed

21   her petition. In light of this, the issue of whether Wilson

22   applied to Johnson’s case was certainly “ripe for review”

23   before the earlier panel issued its order. As we have observed,

24   “it would be absurd that a party who has chosen not to argue a

                                   -9-
 1   point on a first appeal should stand better as regards the law

 2   of the case than one who had argued and lost.” Id. (internal

 3   quotation marks omitted).

 4        We are mindful that the law of the case doctrine “does not

 5   rigidly bind a court to its former decisions, but is only

 6   addressed to its good sense.” Higgins v. Cal. Prune & Apricot

 7   Grower, Inc., 3 F.2d 896 (2d Cir. 1924)(L. Hand, J.). We may

 8   depart from the law of the case for “cogent” or “compelling”

 9   reasons including an intervening change in law, availability of

10   new evidence, or “the need to correct a clear error or prevent

11   manifest injustice.” Quintieri, 306 F.3d at 1230. Johnson does

12   not point to either a change in controlling law or new

13   evidence, and we cannot say that manifest injustice will result

14   from adhering to our earlier order. Thus, we may depart from

15   our earlier ruling only if it constitutes “clear error.”

16        We conclude that we cannot justify describing as clearly

17   erroneous this Court’s decision in Johnson I. While it is

18   perhaps true that precedent did not require that panel at that

19   time to apply the individualized reliance standard to Johnson’s

20   case, this alone does not amount to “clear error.” Neither this

21   Court nor the Supreme Court has previously indicated that

22   retroactivity analysis is to be substantially different for

23   AEDPA’s repeal of § 212(c) than for IIRIRA’s. Indeed, during

24   the pendency of Johnson’s latest petition this Court has


                                  -10-
 1   explicitly applied the Wilson individualized showing of

 2   reliance standard to another AEDPA petitioner. See Walcott, 517

 3   at 151.4 While we do not reach the merits of Johnson’s

 4   argument, it is not of such a character as to obviously compel

 5   a result contrary to the one reached by the Johnson I panel.

 6

 7   III. Conclusion

 8        The law of the case doctrine compels us to follow this

 9   Court’s decision in Johnson I and to reject Johnson’s argument

10   that she need not make an individualized showing of reliance.

11   Therefore, Johnson’s petition is DENIED and our order of

12   February 25, 2009 staying Johnson’s removal is VACATED.




           4
             The government argues that our decision in Walcott
      controls this case. Johnson contends that Walcott is
      distinguishable because it did not confront the precise issue
      she now raises. It is not necessary for us to decide the
      precedential significance of Walcott, so we leave that question
      for another day.

                                  -11-
