     Case: 11-60540     Document: 00511903583         Page: 1     Date Filed: 06/28/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 28, 2012
                                     No. 11-60540
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RODRIGO VARGAS SANCHEZ, also known as Rodrigo Vargas,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A030 415 162


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Colombian citizen Rodrigo Vargas Sanchez petitions for review of the
Board of Immigration Appeals’ (BIA) dismissal of his appeal of the Immigration
Judge’s denial of his application for cancellation of removal.                    The BIA
determined that Vargas Sanchez was statutorily ineligible for such cancellation
because his 1979 Texas conviction for possession of marijuana precluded him
from satisfying the requirement of seven years of continuous residency in the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-60540

United States following his admission. 8 U.S.C. § 1229b(a)(2) (continuous
residency requirement for cancellation of removal eligibility); 8 U.S.C.
§ 1229b(d)(1)(B) (providing, for purposes of cancellation of removal, that
continuous residence deemed to end upon commission of certain offenses) (“stop-
time rule”).
      Vargas Sanchez first maintains application to his 1979 conviction of the
stop-time rule under 8 U.S.C. § 1229b(d)(1)(B), which was enacted in 1996 as
part of the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), has an impermissible retroactive effect and violates his due-process
rights because it attaches a new disability to the guilty plea underlying his 1979
conviction. Questions of law and claims of constitutional error in immigration
proceedings are reviewed de novo. Heaven v. Gonzales, 473 F.3d 167, 171 (5th
Cir. 2006); Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006).
      In Heaven, 473 F.3d at 171-76, our court considered the precise issue
presented here:     whether the stop-time rule under § 1229b(d)(1)(B) is
retroactively applicable to an alien’s pre-1996 convictions, where the
immigration proceedings against the alien commenced after the IIRIRA became
effective in 1997. Our court concluded: Congress had clearly conveyed its intent
that the stop-time rule be retroactively applied in such circumstance; and the
retroactive application of the stop-time rule did not amount to a due-process
violation. Id. at 175-76.
      Needless to say, one panel of this court may not overturn a prior decision
of another, absent an intervening change in the law, such as a statutory
amendment, or by a contrary or superseding decision by either the Supreme
Court or our court en banc. E.g., Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d
375, 378 (5th Cir. 2008). Along that line, Vargas Sanchez contends Heaven
should be overturned based on the Supreme Court’s recent decision in Vartelas
v. Holder, 132 S. Ct. 1479 (2012), in which the Court considered the retroactive
applicability of the definitions of “admission” and “admitted” under the IIRIRA,

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codified at 8 U.S.C. § 1101(a)(13). According to Vargas Sanchez, Vartelas
clarified that § 309(a) of the IIRIRA, which set forth the general effective date
of the IIRIRA, lacked a clear statement of congressional intent for retroactive
application of the IIRIRA. 132 S. Ct. at 1487.
      That § 309(a) does not provide for retroactive application of the IIRIRA is
not controversial, as the Supreme Court had so determined in INS. v. St. Cyr,
533 U.S. 289, 318 (2001), five years before Heaven was decided by our court.
Thus, the reiteration of such a point in Vartelas does not constitute an
intervening change in the law. Vartelas is distinguishable from this case for the
same reason St. Cyr was distinguishable from Heaven: neither Vartelas nor St.
Cyr concerned the stop-time rule and thus did not implicate § 309(c)(5) of the
IIRIRA, which the Heaven court held applied retroactively. 473 F.3d at 175-76.
      Accordingly, Heaven controls. Therefore, the BIA did not err in applying
retroactively the stop-time rule to Vargas Sanchez’ 1979 conviction.
      Vargas Sanchez also claims his substantive and procedural due-process
rights were infringed when the BIA applied retroactively to his 1979 conviction
the definition of “conviction” enacted by the IIRIRA in 8 U.S.C. § 1101(a)(48)(A).
According to Vargas Sanchez, the retroactive application of that definition
stripped his right to apply for cancellation of removal without any legitimate
rational basis. Concerning that rational-basis standard, an alien’s due-process
rights are “limited by Congress’s broad powers to control immigration”.
Rodriguez v. INS, 9 F.3d 408, 413 (5th Cir. 1993). “In light of Congress’s plenary
power to pass legislation concerning the admission or exclusion of aliens, it is
clear that no more searching review than that of rational basis is appropriate.”
Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 332 (5th Cir. 2004).
      In Madriz-Alvarado, 383 F.3d at 334-35, our court rejected the assertion
that it was unconstitutional to apply § 1101(a)(48)(A) to a pre-1996 Texas
deferred adjudication which would not have been considered a conviction for
immigration purposes under the jurisprudential standards that existed prior to

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the enactment of § 1101(a)(48)(A). Our court reasoned that it was “well settled
that Congress has the authority to make past criminal activity a new ground for
deportation”. Id. at 334 (internal quotation marks omitted). Vargas Sanchez’
substantive due-process challenge cannot be reconciled with this holding in
Madriz-Alvarado and is, therefore, unavailing.
      Vargas Sanchez asserts his procedural due-process challenge survives
Madriz-Alvarado, even if his substantive due-process challenge does not.
Regarding procedural due process, he asserts that the retroactive application of
§ 1108(a)(48)(A) precluded him from being able to present the merits and
equities of his application for cancellation of removal. Vargas Sanchez does not
have “a constitutionally protected right to actual discretionary relief from
removal or to be eligible for such discretionary relief”. Manzano-Garcia v.
Gonzales, 413 F.3d 462, 471 (5th Cir. 2005). Along that line, cancellation of
removal is a form of discretionary relief from removal. 8 U.S.C. § 1229b. Thus,
Vargas Sanchez cannot show a procedural due-process violation in his
immigration proceedings based on the determination that he was statutorily
ineligible for cancellation of removal. Manzano-Garcia, 413 F.3d at 471.
      DENIED.




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