                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2006

Hernandez v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-3832




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                                             PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                          No. 04-3832


             DOMINGO ANTONIO HERNANDEZ,
                            Petitioner

                                v.

     *ALBERTO R. GONZALES, Attorney General of
                 The United States,
                            Respondent
                      *(Pursuant to Rule 43(c) FRAP)


           Appeal from the United States District Court
                    for the District of New Jersey
                (D.C. Civil Action No. 04-cv-02186)
           District Judge: Honorable Jerome B. Simandle


                    Argued November 16, 2005
           Before: BARRY and AMBRO, Circuit Judges,
                   and POLLAK 1 , District Judge


       1
        Honorable Louis H. Pollak, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
                  (filed February 14, 2006)

Joseph C. Hohenstein, Esquire (Argued)
Orlow & Orlow, PC
620 Chestnut Street, Suite 656
Philadelphia, PA 19106

      Counsel for Petitioner

Christopher J. Christie
  United States Attorney
Louis J. Bizzarri
  Assistant U.S. Attorney
Matthew J. Skahill, Esquire (Argued)
U.S. Attorney’s Office
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101

      Counsel for Respondent


                OPINION OF THE COURT


AMBRO, Circuit Judge
        Domingo Antonio Hernandez petitions us to rule, inter
alia, that the repeal of suspension of deportation under the
former Immigration and Nationality Act (INA) § 244(a) has
an impermissible retroactive effect on aliens like him who

                               2
pled guilty to a deportable offense and who would have been
eligible for suspension of deportation relief but for the repeal.
For the reasons provided below, we disagree.
            I. Facts and Procedural Background
        Hernandez, a native and citizen of the Dominican
Republic, entered the United States as a B-2 “visitor for
pleasure” on September 9, 1974, and was authorized to stay
in this country only until October 10, 1974. Hernandez,
however, remained in the United States beyond that date
without authorization from the Immigration and
Naturalization Service (INS).2
        On June 27, 1984, Hernandez pled guilty in New York
state court to entering a plea of guilty to attempted criminal
possession of a controlled substance (cocaine) in the third
degree in violation of New York Penal Law § 220.16. As a
result, he was sentenced to five years probation.
        On March 12, 1997, Hernandez married a United
States citizen who filed a visa petition on his behalf, which
was approved on August 14, 1997. In 1998, Hernandez filed
an application for adjustment of status (Form I-485) based on
his marriage. In his I-485 application, Hernandez did not
disclose his prior New York conviction. Hernandez’s
adjustment of status application was denied and a Notice to
Appear was issued on June 21, 1999, starting his removal


       2
        Since March 1, 2003, the INS has been merged into the
Department of Homeland Security, and is now called the
Bureau of Immigration and Customs Enforcement. However,
since the case began as an INS matter, we shall continue to refer
to the INS.

                                3
proceedings. The Notice to Appear charged Hernandez as
being removable from the United States pursuant to §
237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), as an
alien who after admission as a non-immigrant under INA §
101(a)(15) has remained in the United States longer than
permitted by overstaying his temporary visa.
        Hernandez appeared before an Immigration Judge (IJ)
on December 13, 1999. At the hearing, he sought to pursue
his application for adjustment of status based on his marriage
pursuant to INA § 245 and, alternatively, sought discretionary
relief (voiding his removal) pursuant to INA § 240A. The IJ
ruled that Hernandez was ineligible for relief on both grounds
because of his 1984 New York conviction.
        Hernandez appealed the IJ’s decision to the Board of
Immigration Appeals (BIA). It remanded the matter to the IJ
to clarify Hernandez’s identity and to ascertain specifically
whether the New York conviction actually pertained to him.
Moreover, the BIA pointed out that the Government had
failed to charge Hernandez with the prior conviction as a
basis of removal.
        On September 27, 2000, the IJ ruled that the 1984
New York conviction was for Hernandez. The next day the
Government issued Additional Charges of
Inadmissibility/Deportability pursuant to INA §
237(a)(2)(B)(i), charging Hernandez with being removable as
an alien who has been convicted of a law or regulation of a
State, the United States, or a foreign country relating to a
controlled substance.
        On August 13, 2002, a hearing was held and, on the
basis of the 1984 criminal conviction, the IJ determined that
Hernandez was ineligible for the relief he sought. Hernandez

                              4
again appealed to the BIA. Excepting the IJ’s ruling that
Hernandez had been convicted of an “aggravated felony,” the
BIA affirmed the IJ’s decision.
        Hernandez, who was not in INS custody, sought a writ
of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3) in the
United States District Court for the District of New Jersey.
The District Court entertained Hernandez’s § 2241 petition
but denied him relief on the basis that he failed to satisfy the
criteria for entitlement of the relief he sought. He know seeks
our review.
                         II. Jurisdiction
        Under the new judicial review regime imposed by the
Real ID Act, Pub. L. No. 109-13, div. B, 119 Stat. 231
(2005), a petition for review is now the sole and exclusive
means of judicial review for all orders of removal except
those issued pursuant to 8 U.S.C. § 1225(b)(1). See 8 U.S.C.
§ 1252(a)(5). Our jurisdiction was also enlarged, as we now
have the authority to consider constitutional claims or
questions of law raised in a criminal alien’s petition for
review. 8 U.S.C. § 1252(a)(2)(D). Moreover, all habeas
corpus petitions brought by aliens that were pending in the
district courts on the date the Real ID Act became effective
(May 11, 2005) were converted to petitions for review and
transferred to the appropriate courts of appeals. See Real ID
Act, Pub. L. No. 109-13, div. B, tit. I, § 106(c). We have
held that habeas petitions that were pending before our Court
on the effective date of the Real ID Act—such as the one in
this case—were properly converted to petitions for review
and retained by us. Bonhometre v. Gonzales, 414 F.3d 442,
446 (3d Cir. 2005). Indeed, we are obliged to vacate the
District Court’s opinion and address the claims raised in

                               5
Hernadez’s habeas petition as if they were presented before
us in the first instance as a petition for review. Kamara v.
Attorney General of U.S., 420 F.3d 202, 210 (3d Cir. 2005).3
                           III. Merits
        Hernandez seeks a ruling on the merits of his
application seeking to avoid removal from the United States.
In support of his request for relief, he presents two
arguments. First, he maintains that he has a due process right
to a hearing on the merits of his discretionary relief
application. Second, he submits that, because he filed an
application for discretionary relief, the INS is statutorily
bound to consider it pursuant to former section 244(a) of the
INA.
        On April 1, 1997, “suspension of deportation” relief,
INA § 244(a), 8 U.S.C. § 1254(a), was repealed and replaced
by “cancellation of removal” relief, INA § 240A, 8 U.S.C. §
1229b(b), when Congress passed the Illegal Immigration
Reform and Immigrant Responsibility Act, Pub. L. No.
104-208, div. C., 110 Stat. 3009 (1996) (IIRIRA). Under the
former relief, a non-permanent resident alien against whom


       3
        Although Hernandez’s appeal of the District Court’s
denial of his habeas petition has now been converted into a
petition for review, our standard of review remains the same.
Bonhometre, 414 F.3d 442, 445. “A review for ‘constitutional
claims or questions of law,’ as described in § 106(a)(1)(A)(iii)
of the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), mirrors our
previously enunciated standard of review over an alien’s habeas
petition.” Kamara, 420 F.3d at 211. Thus, we review
Hernandez’s constitutional and legal questions de novo. Id.

                               6
deportation proceedings on most criminal grounds had begun
could apply for suspension of deportation, provided he had
been physically present continuously in the United States for
ten years immediately following the criminal act constituting
the grounds for deportation, had good moral character, and
could show that deportation would work a severe hardship on
him or on certain United States citizen relatives. See INA §
244(a), 8 U.S.C. § 1254(a) (repealed 1996). By contrast,
“cancellation of removal” provides for relief from removal
where an non-permanent resident alien (1) has been present
in the United States continuously for ten years, (2) has had
“good moral character” during that period, (3) has no
convictions for disqualifying crimes,4 and (4) has a spouse,
parent, or child who is a U.S. citizen or lawful alien and for
whom the applicant’s removal would lead to “exceptional
and extremely unusual hardship.” INA § 240A, 8 U.S.C. §
1229b(b)(1).
       A. Due Process
       As noted, Hernandez argues that due process demands
he be permitted to apply for discretionary relief seeking to
avoid removal from the United States. The procedural
component of the Fifth Amendment’s Due Process Clause
protects against the deprivation of life, liberty, or property


      4
        Any controlled-substance conviction—other than a
single offense involving possession for one’s own use of 30
grams or less of marijuana—is a disqualifying crime. See 8
U.S.C. § 1229b(b)(1)(C) (citing 8 U.S.C. § 1227).



                              7
without “due process of law.” U.S. Const. amend. V. The
necessary first step in evaluating any procedural due process
claim is determining whether a constitutionally protected
interest has been implicated.
       Hernandez is correct in contending that aliens within
the United States may not be deprived of liberty or property
without due process. Mathews v. Diaz, 426 U.S. 67, 77
(1976); Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 212 (1953) (“It is true that aliens who have once passed
through our gates, even illegally, may be expelled only after
proceedings conforming to traditional standards of fairness
encompassed in due process of law.”). But, like others, aliens
must in the first instance possess a liberty or property interest.
See Bd. of Regents v. Roth, 408 U.S. 564, 569-71 (1972).
Aliens who seek only discretionary relief from deportation
have no constitutional right to receive that relief. Cf.
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465
(1981).5 Rather, the ability of those aliens to remain in the


       5
         In Dumschat, the Supreme Court held that a state inmate
does not enjoy a constitutionally protected liberty interest in
having his or her sentence commuted, even where the state
“consistently” commuted the sentences of inmates in “most”
cases. 452 U.S. at 464-65. The Court reasoned that “a
constitutional entitlement cannot ‘be created--as if by
estoppel--merely because a wholly and expressly discretionary
state privilege has been granted generously in the past.’” Id. at
465 (quoting Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979)).
Instead, according to the Court, “[i]n terms of the Due Process
Clause, a . . . felon’s expectation that a lawfully imposed

                                8
United States is a matter of “permission and tolerance.”
Harisiades v. Shaughnessy, 342 U.S. 580, 586-87 (1952). It
as an “act of grace” that, like a presidential pardon, is
extended in the Attorney General’s “unfettered discretion.”
INS v. Yang, 519 U.S. 26, 30 (1996) (internal quotations
omitted). In this context, Hernandez is not deprived of a
liberty or property interest.6 See Tefel v. Reno, 180 F.3d
1286, 1301 (11th Cir. 1999).7
        B. Retroactivity
        Hernandez alternatively argues on appeal that
IIRIRA’s repeal of suspension of deportation, former INA §



sentence will be commuted or that he will be pardoned is no
more substantial than an inmate’s expectation, for example, that
he will not be transferred to another prison; it is simply a
unilateral hope.” Id. (internal footnote omitted). The same
analysis applies here.
       6
        Of course, to condition eligibility for the discretionary
privilege of suspension of deportation on some irrational or
invidious characteristic—e.g., gender, or age, or political or
religious affiliation—would pose constitutional concerns.
       7
        Moreover, Hernandez’s attempt to argue that a
constitutional injury stems not from being denied suspension of
deportation, but from being rendered ineligible to be considered
for suspension, fails. This “argument draws a distinction
without a constitutional difference. Where no deprivation of a
liberty or property interest has occurred, no violation of
procedural due process has occurred.” Id.

                               9
244(a), has an impermissible retroactive effect. Relying on
INS v. St. Cyr, 533 U.S. 289 (2001), and Ponnapula v.
Ashcroft, 373 F.3d 480 (3d Cir. 2004), Hernandez essentially
maintains that the retroactivity analysis applicable to
IIRIRA’s repeal of the former INA § 212(c) is
interchangeable with the analysis to be applied to the repeal
of INA § 244(a) and, as a result, he is entitled to § 244(a)
suspension of deportation.
        The Government, on the other hand, maintains that
aliens such as Hernandez, who are in the United States
illegally, enjoy no right to continue living here and, in
entering a guilty plea to a criminal charge, did not alter their
course in the criminal justice system in reliance on the
availability of § 244(a) relief. In other words, because
Hernandez had no reasonable reliance on the availability of
suspension of deportation when he entered his guilty plea and
remained in the United States illegally, IIRIRA’s repeal of
suspension of deportation does not work an impermissible
retroactive effect.
        Under former § 212(c) of the INA, 8 U.S.C. § 1182(c)
(repealed 1996), deportable aliens who had accrued seven
years of lawful permanent residence in the United States
could request discretionary relief from deportation by arguing
that the equities weighed in favor of their remaining in the
United States. Even an alien deportable because he had been
convicted of an aggravated felony, see 8 U.S.C. §
1227(a)(2)(A)(iii), was eligible for this discretionary relief if
he served a term of imprisonment less than five years. See 8
U.S.C. § 1182(c). There was also a strong likelihood that this
relief would be granted; indeed, the Attorney General granted
it in over half of all cases in which it was sought. See St. Cyr,

                               10
533 U.S. at 296 & n.5. Moreover, the relief was predictably
granted where certain factors were present, including family
ties within the United States, residence of long duration in
this country, evidence of hardship to the immigrant’s family
as a result of deportation, and a stable history of employment.
See In re Marin, 16 I & N Dec. 581, 584-85 (BIA 1978).
        Section 304(b) of IIRIRA repealed § 212(c) relief
entirely, replacing it (as noted) with a procedure called
“cancellation of removal,” see 8 U.S.C. § 1229b, and
providing the revised form of relief is not available to an
alien convicted of any aggravated felony. The definition of
“aggravated felony” was retroactively expanded to include
dozens more offenses, including misdemeanor and low-level
felony offenses. See 8 U.S.C. § 1101(a)(43). The practical
effect of the repeal of § 212(c) relief, in conjunction with
several other statutory amendments, is that a far larger
number of immigrants are now removable under the new law,
while a much smaller number are eligible for any form of
relief from removal.
        In INS v. St. Cyr, 533 U.S. at 326, the Supreme Court
held that discretionary relief under former § 212(c) “remains
available for aliens . . . whose convictions were obtained
through plea agreements and who . . . would have been
eligible for § 212(c) relief at the time of their plea under the
law then in effect.” The Court was asked to determine
whether IIRIRA section 304(b) applied retroactively. After
concluding that Congress did not provide a sufficiently clear
command with respect to the temporal reach of the repeal of
former § 212(c) by IIRIRA section 304(b), the Court applied
the next step under the familiar principles of Landgraf v. USI


                              11
Film Products, 511 U.S. 244 (1994),8 to determine whether
the repeal had an impermissible retroactive effect. Landgraf
cataloged a history of Supreme Court precedents establishing
a “presumption against statutory retroactivity,” id. at 270, in
the absence of a clear command from Congress. A statute
will be impermissibly retroactive when it attaches new legal
consequences to prior events because its application “would
impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties with
respect to transactions already completed.” Id. at 280. The
question whether a new statute attaches new legal
consequences to prior conduct “demands a common sense,
functional judgment” that “should be informed and guided by
‘familiar considerations of fair notice, reasonable reliance,
and settled expectations.’” Martin v. Hadix, 527 U.S. 343,
357-58 (1999) (quoting Landgraf, 511 U.S. at 270).
       In St. Cyr, the Court concluded that the retroactive
application of IIRIRA section 304(b) would have an


       8
        In deciding whether the repeal of INA § 212(c) should
be applied retroactively, the Supreme Court applied the two-step
analysis it had previously set out in Landgraf. See St. Cyr, 533
U.S. at 315-26. Under Landgraf, the first step to decide whether
a statute has a retroactive effect is “to ascertain whether
Congress ha[s] directed with the requisite clarity that the law be
applied retrospectively.” Id. at 316 (internal citations omitted).
The second step of the Landgraf analysis is deciding whether
applying the statute retroactively has an impermissible effect.
Id. at 321.


                               12
impermissible retroactive effect on aliens–such as St.
Cyr–who had pled guilty prior to the repeal of § 212(c). The
Court highlighted the quid pro quo of the criminal plea
agreement, and reasoned that because aliens like St. Cyr
almost certainly relied on the likelihood of receiving
discretionary relief in deciding whether to forgo their right to
a trial, the elimination of any possibility of § 212(c) relief by
IIRIRA had an obvious and significant retroactive effect. St.
Cyr, 533 U.S. at 322 (“In exchange for some perceived
benefit, defendants waive several of their constitutional rights
. . . and grant the government numerous tangible benefits.”).
         We recently extended St. Cyr’s impermissible
retroactivity analysis to aliens who elect to go to trial.9


       9
        We have taken a more expansive view than several of
our sister circuits on this issue. For instance, the Courts of
Appeals for the Second and Fourth Circuits have confined St.
Cyr to the plea-agreement context on the understanding that a
quid pro quo is required. See Swaby v. Ashcroft, 357 F.3d 156,
161-62 (2d Cir. 2004); Rankine v. Reno, 319 F.3d 93, 100 (2d
Cir. 2003); Chambers v. Reno, 307 F.3d 284, 290-91 (4th Cir.
2002). Other courts of appeals have also limited St. Cyr’s
retroactivity holding to the plea-bargain context without
specifically invoking the quid pro quo language from it. See
Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004) (per
curiam); Dias v. INS, 311 F.3d 456 (1st Cir. 2002);
Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. 2002);
Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002). A related
argument advanced by the Government in these cases is that the
immigrant has “rolled the dice” by going to trial and thereby

                               13
Ponnapula v. Ashcroft, 373 at 491 (stating that “the courts
that have held that IIRIRA’s repeal of § 212(c) relief is not
impermissibly retroactive with respect to aliens who went to
trial . . . have erected too high a barrier to triggering the
presumption against retroactivity”). Ponnapula involved an
alien who had been indicted by a New York state grand jury,
along with several other defendants, for grand larceny in the
first degree, N.Y. Penal Law § 155.42, and falsifying
business records in the first degree, N.Y. Penal Law §
175.10. 373 F.3d at 483. Subsequent to indictment,
Ponnapula and the Manhattan District Attorney’s Office
engaged in plea negotiations. Ponnapula considered a plea
offer and the immigration consequences of pleading guilty
versus going to trial. His counsel advised him that, if he was
convicted, he would very likely receive the minimum
sentence of only one to three years imprisonment, which is
less than the five years necessary to disqualify an alien from §
212(c) relief. Accordingly, Ponnapula reasonably believed
that, even if he were convicted of a felony after trial, he
would still likely be eligible for hardship relief from
deportation pursuant to former § 212(c). In reliance on this
advice, Ponnapula decided to turn down the misdemeanor
offer and proceeded to trial. He was convicted of both counts
in the indictment and sentenced to the minimum term of
imprisonment – one to three years.
          After Ponnapula was allowed out of prison on work
release, the INS filed a detainer and warrant for a removal


forfeited any claim to certainty. See, e.g., Chambers, 307 F.3d
at 291-92.

                              14
hearing. At the conclusion of a hearing, an immigration
judge found Ponnapula removable from the United States.
On appeal, the BIA affirmed, holding that St. Cyr could not
be extended beyond defendants who had pleaded guilty.
         On review to our Court, the Government argued that
Ponnapula’s retroactivity claim failed because St. Cyr rests
uniquely on the existence of the quid pro quo of criminal plea
agreements. Indeed, this was the view adopted by the Second
Circuit when faced with the same issue in Rankine v. Reno,
319 F.3d 93, 100 (2d Cir. 2003). There, it laid out the
Supreme Court’s modern retroactivity doctrine, see id. at
98-99, and then explained that the petitioners’ “choice to go
to trial puts [them] on different footing [from St. Cyr] in two
crucial respects.” Id. at 99.
         First, none of these petitioners detrimentally
         changed his position in reliance on continued
         eligibility for § 212(c) relief. Unlike aliens who
         entered pleas, the petitioners made no decision
         to abandon any rights and admit guilt-thereby
         immediately rendering themselves deportable-in
         reliance on the availability of the relief offered
         prior to IIRIRA. The petitioners decided
         instead to go to trial, a decision that, standing
         alone, had no impact on their immigration
         status. Unless and until they were convicted of
         their underlying crimes, the petitioners could
         not be deported.
                            * * * * *
         Second, the petitioners have pointed to no
         conduct on their part that reflects an intention to
         preserve their eligibility for relief under §

                              15
        212(c) by going to trial. If they had pled guilty,
        petitioners would have participated in the quid
        pro quo relationship, in which a greater
        expectation of relief is provided in exchange for
        forgoing a trial, that gave rise to the reliance
        interest emphasized by the Supreme Court in St.
        Cyr. As the Court made clear, it was that
        reliance, and the consequent change of
        immigration status, that produced the
        impermissible retroactive effect of IIRIRA.
        Here, petitioners neither did anything nor
        surrendered any rights that would give rise to a
        comparable reliance interest.
Id. at 99-100 (citation omitted).
        We rejected this rationale for three reasons. First, we
noted that the “Second Circuit’s lack of emphasis on the
presumption against retroactivity is in considerable tension
with the Supreme Court’s consistent treatment of retroactivity
analysis.” Ponnapula, 373 F.3d at 490 (emphasis in
original). Indeed, the Second Circuit’s approach had the
effect of treating Landgraf as establishing a presumption in
favor of retroactive application. Id. This would be wrong, as
the Supreme Court has held explicitly that a federal court of
appeals erred by concluding that Landgraf contained a
“strong presumption in favor of retroactivity.” Hughes
Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939,
950 (1997) (stating “[t]he Ninth Circuit simply misread our
decision in Landgraf, for the only ‘presumption’ mentioned
in that opinion is a general presumption against
retroactivity”) (emphasis in original).
        Second, we observed that the Rankine passage cited

                              16
above discussing a detrimental change in position appears to
require actual reliance by the party seeking to avoid
retroactive application despite the fact that the Supreme Court
has never required actual reliance in any case in the Landgraf
line. Id. at 489. We noted that “[t]he likelihood that the party
before the court did or did not in fact rely on the prior state of
the law is not germane to the question of retroactivity.” Id. at
493 (concluding that “the Supreme Court has avoided an
‘actual reliance’ formulation in favor of a ‘reasonable
reliance’ formulation in its retroactivity analysis”). “Rather,
courts are to concentrate on the group to whose conduct the
statute is addressed – in Landgraf it was employers subject to
Title VII; in Hughes Aircraft it was government contractors;
in Hadix it was attorneys performing prison reform
monitoring services; in St. Cyr it was aliens who accepted a
plea agreement – with a view to determining whether reliance
was reasonable.” Id. In sum, “[t]he Landgraf line . . .
establishes that a change in law can be found impermissibly
retroactive without establishing that some (or all) members of
the group affected by the change in law relied on the prior
state of the law.” Id.
        Finally, we expressed our concern with the Second
Circuit’s objection that “petitioners have pointed to no
conduct on their part that reflects an intention to preserve
their eligibility for relief under § 212(c)” because that
statement suggests that the party seeking to avoid retroactive
application bears an evidentiary burden, another requirement
nowhere to be found in Landgraf or its progeny. Id. at 490.
        Relying heavily on these three points of contention
with the Second Circuit, we concluded that a defendant who
goes to trial believing that his opportunity to seek § 212(c)

                               17
relief is secure is as equally disrupted in his reasonable and
settled expectations as is a defendant who accepts a plea
believing it to confer such a benefit. Id. at 496. Accordingly,
Ponnapula was entitled to apply for discretionary withholding
of deportation under former § 212(c). Id.
        The Government contends that St. Cyr and Ponnapula
do not apply to aliens such as Hernandez because, unlike him,
the aliens represented in St. Cyr and Ponnapula had some
reasonable reliance in the availability of discretionary relief.
That is, because the St. Cyr and Ponnapula aliens had
accrued seven years of lawful permanent residence, they were
eligible to seek § 212(c) relief at the time of their plea or jury
trial. Moreover, those aliens were aware that a criminal
conviction, either via a guilty plea or jury trial, was not an
automatic bar to their application. Indeed, aliens who pled
guilty or were convicted at trial and sentenced to less than
five years imprisonment still could apply for § 212(c) relief.
Thus, while the St. Cyr and Ponnapula aliens altered their
courses in the criminal justice system seeking to preserve
eligibility for discretionary withholding of deportation, such
reasonable reliance is not present for aliens such as
Hernandez who pled guilty prior to the repeal of former INA
§ 244(a).
        As previously discussed, under the now-repealed §
244(a), the Attorney General could suspend deportation, and
adjust the status to that of an alien lawfully admitted for
permanent residence, for a non-permanent resident alien who
applied to the AG for suspension of deportation and
subsequent to his or her deportable offense had been
physically present in the United States for a continuous
period of not less than ten years following the commission of

                               18
the deportable act. Such an alien must additionally prove that
he or she has been a person of good moral character for the
entire ten-year period and that he or she is someone whose
deportation would result in exceptional and extremely
unusual hardship personally or to his or her spouse, parent or
child who is a United States citizen or lawful permanent
resident. 8 U.S.C. § 1254(a).
        Simply stated, under the pre-1996 statutory scheme,
when an alien such as Hernandez pled guilty to a deportable
offense, he had to remain in the United States for an
additional period of ten years under the above-described
terms and conditions before he would even be eligible for
discretionary relief. If that alien was served with an Order to
Show Cause or a Notice to Appear prior to the completion of
the ten-year period, he necessarily would be deportable and
ineligible for application of § 244(a) relief. Therefore, the
Government maintains, aliens in the group represented by
Hernandez do not have a reasonable reliance on the
availability of suspension of deportation when entering a plea
of guilty and altering their course in the criminal justice
system because, prior to entry of such a plea, the alien would
not have been eligible for § 244(a) relief10 and would be


       10
         Here, the Government is wrong. There is no dispute
that prior to his 1984 guilty plea, Hernandez’s eligibility was
governed by “suspension of deportation” relief, former INA §
244(a), not “cancellation of removal relief” as now defined by
INA § 240A. Because Hernandez had no convictions and had
been in the United States since 1974, he was eligible to apply for
relief prior to his 1984 guilty plea (for which he would have

                               19
ineligible for § 244(a) relief for an additional ten years.
         Hernandez counters that the group he represents –
people who pled guilty prior to a change in the law and who
were eligible for suspension relief prior to that change – had
reason to believe that suspension relief was available. Citing
Landgraf, 511 U.S. at 269, he submits that, whether the
repeal of § 244(a) took away his statutorily vested rights, it
certainly “attache[d] a new disability” to his past actions,
which constitutes a change in the law no different than the
change effected on the aliens in St. Cyr and Ponnapula. For
the reasons provided below, we disagree.
         As a starting point and similar to the conclusion
reached by the Supreme Court in St. Cyr, we hold that
IIRIRA does not state with sufficient clarity that its repeal of
§ 244(a) suspension of deportation relief is intended to apply
to an alien in Hernandez’s position, such that it must be
applied even if its operation is retroactive. Like the section
of IIRIRA repealing § 212(c) suspension of deportation
relief, the statutory provision – stating merely, “strike section
244 (8 U.S.C. § 1254)” – does not “expressly prescribe [its ]
proper reach.” Landgraf, 511 U.S. at 280. Because the
statute does not clearly state that it is to be applied
retroactively, we proceed to the second step of the Landgraf
analysis.
         To prevail there, Hernandez must show that the repeal
of suspension of deportation has a retroactive effect on aliens
like him who pled guilty to a controlled substance offense


needed to show good moral character and severe hardship)
under § 244(a).

                               20
prior to the change in the law and were eligible for
suspension of deportation relief prior to that change. As
detailed above, the Court in St. Cyr noted that in determining
“whether a particular statute acts retroactively, [the Court]
should be informed and guided by familiar considerations of
fair notice, reasonable reliance, and settled expectations.” Id.
at 321 (internal quotations omitted). Specifically, the Court
considered the plea bargain entered by St. Cyr, and asked
whether the application of IIRIRA “‘attaches a new disability,
in respect to transactions or considerations already past.’” Id.
(quoting Landgraf, 511 U.S. at 269).
        In applying the second Landgraf step, and based on
reasoning similar to that presented by the Government here,
two circuit courts have denied claims relating to suspension
of deportation eligibility that are relevant to our analysis. See
Karageorgious v. Ashcroft, 374 F.3d 152 (2d Cir. 2004);
Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir. 2002).
In Karageorgious, father and son aliens presented themselves
to the INS by filing an application for suspension of
deportation. 374 F.3d at 154. Indeed, the petitioners filed
their application on March 28, 1997, in anticipation of the
April 1, 1997 effective date repealing suspension of
deportation. Id. The petitioners were potentially eligible for
suspension of deportation but not eligible for cancellation of
removal. Id. The decision of the father and son to present
themselves to immigration authorities was premised on the
express desire of preserving their eligibility for suspension of
deportation post-IIRIRA. Id.
        The Second Circuit Court held that the petitioners
were not similarly situated to the alien class at issue in St. Cyr
and, thus, the repeal was not impermissibly retroactive. Id. at

                               21
156. Citing a case from our Circuit, the Court held that the
repeal of suspension of deportation did not apply
retroactively because the repeal did not attach any new legal
consequences to the petitioners’ pre-IIRIRA conduct:
        As the Third Circuit explained in Uspango v.
        Ashcroft, petitioners “gave up no rights by
        filing the[ir] petition [for suspension].” 289
        F.3d 226, 230 (3rd Cir. 2002).11 Petitioners had
        no right to remain “living illegally and
        undetected in the United States.” Therefore,
        they relinquished no rights and acquired no new
        obligations when they turned themselves in to
        the INS. In effect, petitioners are no different
        from aliens who chose not to apply for
        suspension of deportation prior to the date on
        which IIRIRA became effective.
Id. (citations and quotation omitted).
        Much like the petitioners in Karageorgious, the
petitioner in Jimenez-Angeles brought herself to the attention
of the INS in March 1997 in an attempt to begin a process
that would enable her to apply for suspension of deportation.
291 F.3d at 597. Jimenez-Angeles argued that she was like
the alien in St. Cyr, who pled guilty prior to IIRIRA’s
effective date, and thus had a reliance interest in the
availability of § 212(c) relief. Id. at 600. The Ninth Circuit
Court concluded that Jimenez-Angeles’ circumstances


       11
         Uspango dealt with when to begin counting the
requisite physical presence requirement, which is not at issue in
this case.

                               22
differed significantly from those in St. Cyr, as
        [t]he factors that militated in favor of St. Cyr–in
        particular, his ‘settled expectations’ based on
        ‘transactions or considerations already past’–
        are not present in Jimenez-Angeles’ case. . .
        .When St. Cyr entered into his plea bargain, he
        gave up valuable legal rights, including his
        right to trial by jury. By contrast, when
        Jimenez- Angeles revealed herself to the INS,
        she gave up only her ability to continue living
        illegally and undetected in the United States.
Id. at 602.
        Because our colleagues in the Second and Ninth
Circuits engage in a retroactivity analysis different from the
one we apply, Karageorgious and Jimenez-Angeles are
distinguishable. As explained in Ponnapula, under our
retroactivity standards, a presumption against retroactivity is
“easily triggered” (though not automatic), see 373 F.3d at
490-91, and we do not look to the actual reliance of the
petitioner bringing the claim, id. at 493. Indeed, Hernandez
relies on Ponnapula for the proposition that, when he
revealed his unlawful status by filing an application for
adjustment of status, he had a settled expectation that, if that
application was denied, he would be able to request
suspension of deportation. Ponnapula notwithstanding, this
argument is unpersuasive for several reasons.
        First, we take issue with Hernandez’s claim that he
voluntarily revealed his unlawful status because the record
makes clear that Hernandez failed to disclose his 1984 New
York conviction in his adjustment of status application.
Moreover, he was eligible to request suspension of

                               23
deportation on June 27, 1994 – nearly three years before the
effective repeal of § 244(a) – but he did not reveal himself to
authorities to make such a request until well after the repeal
of that section. By contrast, it was undisputed that the
petitioners in Karageorgious and Jimenez-Angeles
voluntarily revealed their illegal status to the INS, and in fact
did so prior to the repeal of either § 244(a) or § 212(c) of the
INA. Notably, the Karageorgious and Jimenez-Angeles
petitioners’ claims still failed because they relinquished no
rights and acquired no new obligations by turning themselves
in to the INS.
        More importantly, Hernandez cannot credibly claim a
retroactive effect from his guilty plea because immediately
after he entered his plea he was ineligible for any kind of
relief and, in fact, would remain ineligible for any kind of
relief for a decade. This fact distinguishes Hernandez from
the petitioners in St. Cyr and Ponnapula, both of whom were
qualified to apply for § 212(c) relief at the time they made
their respective decisions to plead guilty and go to trial, as
each petitioner had already accrued the requisite years of
lawful permanent residence in the United States. Simply
stated, Hernandez did not and could not enter his plea in
reliance on § 244(a) relief.
        In essence, then, all that Hernandez can claim a
retroactive effect from is his voluntary communication with
the INS to apply for a benefit – adjustment of status based on
his marriage to a United States citizen. The unstated crux of
Hernandez’s claim is that he would not have applied for an
INS benefit if he had known that he was ineligible for §
244(a) relief. We refuse to rule that the repeal of § 244(a)
attaches a new disability to Hernandez’s decision to concede

                               24
voluntarily his alienage post-IIRIRA because such a
determination implicitly presumes that Hernandez had some
right to continue to conceal his illegal status. As explained
above, Hernandez had every opportunity to reveal himself to
the INS while the pre-IIRIRA rules were still in effect and, at
that juncture, could have reasonably relied on then-extant §
244(a) relief. Because Hernandez’s application for
adjustment of status amounts to a decision to give up
something to which he had no right in the first place—his
ability to continue living illegally in the United States—we
conclude that Hernandez’s 1999 concession of his alienage
does not cause Congress’ repeal of suspension of deportation
as applied to him to be impermissibly retroactive.
                         * * * * *
        For the reasons detailed above, due process does not
demand Hernandez be permitted to apply for suspension of
deportation. Moreover, the 1996 repeal of suspension of
deportation under section 244(a) of the INA does not have an
impermissibly retroactive effect on aliens who both pled
guilty to a deportable offense prior to the repeal of that
section and were eligible for relief prior to its repeal. In this
context, Hernandez’s petition for review is denied.




                               25
