                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                         REVISED May 4, 2007
                                                                      April 24, 2007
                IN THE UNITED STATES COURT OF APPEALS
                                                                 Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT                           Clerk
                         _____________________

                              No. 05-60555
                         _____________________

MIRIAM GARRIDO-MORATO,

                                                                 Petitioner,

                                   versus

ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,

                                                      Respondent.
_________________________________________________________________

              Petition for Review of an Order of the
                   Board of Immigration Appeals
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Miriam Garrido-Morato (“Garrido”) petitions for review of a

decision of the Board of Immigration Appeals (“BIA”).                  The BIA

held that she was ineligible for discretionary hardship relief from

deportation because in 1996 she was convicted by her plea of guilty

for harboring aliens.    The primary issues she raises relate to the

retroactivity of the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”) amendments that made harboring aliens

an aggravated felony.    Garrido contends that these amendments are

impermissibly   retroactive   as    applied   to   her   and   that    she    is

entitled to the benefits of the law as it existed when she entered

her plea of guilty, that is, notwithstanding her conviction, she is
eligible for discretionary relief.       We conclude otherwise and deny

the petition for review.

                                    I

     Garrido entered this country in 1986 from her native Mexico,

traveling as a minor with her mother.        She was admitted as a non-

immigrant visitor with permission to remain for 72 hours, but has

remained in the United States without apparent interruption.             In

the expanse of time, Garrido married, had three children and is now

divorced.

     On March 13, 1996, the authorities decided it was time for her

to go home.      The former Immigration and Nationalization Service

(“INS”) filed an order to show cause charging that Garrido had

stayed longer than she was authorized.

     On June 11, Garrido pled guilty in federal court in the

Southern District of Texas to one count of harboring aliens.

     On   July   2,   an   Immigration   Judge   (“IJ”)   held   a   hearing

concerning Garrido’s case, at which Garrido conceded deportability.

She was not immediately ordered deported, however, and instead was

granted the opportunity to apply for suspension of deportation.

     On August 23, a judgment in her criminal case for harboring

aliens was entered and Garrido was sentenced to three years of

probation.

     On September 10, she applied for suspension of deportation

under § 244 of the Immigration and Nationality Act, formerly

codified at 8 U.S.C. § 1254(a)(2) (1994), contending that her

                                    2
deportation would result in an undue hardship because her family is

settled in the United States.        Under § 244 the Attorney General had

discretion to adjust the status of a deportable alien who

              has been physically present in the United
              States for a continuous period of not less
              than ten years immediately following the
              commission of an act, or the assumption of a
              status, constituting a ground for deportation,
              and proves that during all of such period he
              has been and is a person of good moral
              character; and is a person whose deportation
              would, in the opinion of the Attorney General,
              result in exceptional and extremely unusual
              hardship to the alien or to his spouse,
              parent, or child, who is a citizen of the
              United States or an alien lawfully admitted
              for permanent residence.

8 U.S.C. § 1254(a)(2) (1994).

       On September 30, Congress passed IIRIRA, making two relevant

changes affecting Garrido’s situation. First, the new law repealed

§   1254(a)    and   replaced   it   with   §   1229b,   which   added    a   new

requirement for discretionary relief -- that the alien seeking such

relief have no conviction for an aggravated felony.                      Second,

Congress modified the definition of “aggravated felony” and, for

the first time, specifically included the crime of harboring aliens

within that definition.

       In March 1997, the IJ held hearings to consider Garrido’s

request for relief.       On March 27, the IJ, rejecting her arguments

that   the    new    IIRIRA   amendments    were   not   applicable      to   her

situation, found that she was ineligible for relief.               It was not

until February 2002 that the BIA rejected Garrido’s appeal.                   She


                                       3
did not appeal.   Instead, Garrido later became a plaintiff in a

class action in the district court for the Southern District of

Texas, seeking habeas relief.   Upon the passage of the REAL ID Act,

see Pub. L. No. 109-13, 119 Stat. 231, 311, § 106(c), the habeas

petition was transferred to this court and converted into this

petition for review.

                                 II

                                 A

     Garrido argues that the determination that she is ineligible

for relief arises from an impermissibly retroactive application of

the amended definition of “aggravated felony” in IIRIRA § 321.1

     1
       Garrido also argues that a conviction for harboring aliens
should not bar her from discretionary relief because it does not
“relate to alien smuggling” and thus does not fit the definition of
“aggravated felony” at issue here. This contention is foreclosed
by our decision in United States v. Monjaras-Castaneda, 190 F.3d
326, 329-31 (5th Cir. 1999), in which we held that the
parenthetical “related to alien smuggling” in 8 U.S.C. §
1101(a)(43)(N) is descriptive and not limiting.

     Garrido’s argument that the effective elimination of hardship
relief violates international law also fails, as we recently
rejected this precise argument. See Martinez-Lopez v. Gonzales,
454 F.3d 500, 502-03 (5th Cir. 2006).

     Finally, Garrido contends that her constitutional rights have
been violated by the retroactive application of IIRIRA to her. Her
due process rights are not at issue here because we have
consistently held that discretionary relief from removal is not a
liberty or property interest afforded such protection. See Assaad
v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). We reject her
equal protection argument because, under rational basis scrutiny,
Congress could have rationally decided to make discretionary relief
unavailable with immediate effect. Garrido’s ex post facto clause
argument fails because its protections do not extend to “acts of
Congress governing deportation.” Marcello v. Ahrens, 212 F.2d 830,
838-39 (5th Cir. 1954). We deem Garrido’s Takings Clause argument

                                 4
Relying on INS v. St. Cyr, 533 U.S. 289 (2001), she argues that

applying the amended definition of aggravated felony attaches new

consequences to the bargain that she had made with the government,

i.e., her plea of guilty; that is, after she agreed to plead guilty

and   was    convicted   on   her   plea,   the   government   changed   the

definition to make her crime an aggravated felony so as to render

her ineligible for relief that earlier had been available to her.

      Specifically, the new definition of aggravated felony codified

at 8 U.S.C. § 1101(a)(43)(N), includes “an offense described in [8

U.S.C. § 1324(a)(1)(A) or (2)] ... (relating to alien smuggling)

except” in cases that the parties agree do not apply here.               See

P.L. 104-132, § 440(e)(3); P.L. 104-208, § 321(a) at 110 Stat.

3009-627.2     To say it clearly, this new definition of aggravated

felony includes Garrido’s crime of conviction, harboring aliens.

Whether the statute has retroactive application is an argument

based on statutory interpretation, see Falek v. Gonzales, 475 F.3d

285, 290-91 (5th Cir. 2007), and thus a pure question of law.             We

review the BIA’s conclusions of law de novo. Hernandez-Castillo v.

Moore, 436 F.3d 516, 519 (5th Cir. 2006).




abandoned as it does not extend beyond the conclusory assertion
that there was a taking of the filing fee she paid with her
application for suspension of deportation. See Dardar v. Lafourche
Realty Co., 985 F.2d 824, 831 (5th Cir. 1993).
      2
       The definition was amended by both the Anti-Terrorism and
Effective Death Penalty Act, P.L. 104-132, and IIRIRA.

                                      5
      Determining whether a statute is impermissibly retroactive

requires an analysis of one, or two, steps:

           First, a statute must be given retroactive
           effect if Congress has communicated, with
           clarity, its intent that the law be applied
           retroactively [citation omitted].      Second,
           where a clear statement from Congress is
           lacking, there is an impermissible retroactive
           effect where the application of the statute
           ‘attaches new legal consequences to events
           completed before the statute’s enactment.’

Id. (quoting Landgraf v. USI Film Products, 511 U.S. 244, 270

(1994)).     The dispositive question before us is whether Congress

has expressed its clear intent that the IIRIRA definition of

aggravated felony apply to the petitioner’s crime of conviction.

      The standard for finding a statute expressly retroactive is

demanding.     St. Cyr, 533 U.S. at 316.              The Supreme Court has

suggested that retroactivity has only been found in “statutory

language   that    was   so   clear   that    it    could   sustain    only   one

interpretation.”     Id. (quoting Lindh v. Murphy, 521 U.S. 320, 328

n.4 (1997)).

                                       B

      Whether the statute at issue expresses a clear intent that the

new   definition    of   aggravated        felony   apply   to   all   previous

convictions for harboring aliens requires a careful examination of

IIRIRA § 321(b) and (c).       The statute provides:

           (b) EFFECTIVE DATE OF DEFINITION.--Section
           101(a)(43) (8 U.S.C. 1101(a)(43)) is amended
           by adding at the end the following new
           sentence: "Notwithstanding any other provision
           of law (including any effective date), the

                                       6
            term [i.e., aggravated felony] applies [to,
            inter   alia,   crimes   relating  to   alien
            smuggling]    regardless   of   whether   the
            conviction was entered before, on, or after
            the date of enactment of this paragraph.".

            (c) EFFECTIVE DATE.--The amendments made by
            this section shall apply to actions taken on
            or after the date of the enactment of this
            Act, regardless of when the conviction
            occurred ....

P.L. 104-208, 110 Stat. 3009-628.

     It   is   unmistakable   but   that   §   321(b)   clearly   expresses

Congress’s intent to apply the new definition of “aggravated

felony” to all covered felonies, no matter when the convictions

occurred.

     Because she must concede that the terms of § 321(b) express an

intent of retroactivity as to the definition of aggravated felony

under the statute,3 Garrido relies on § 321(c) to argue that it is

unclear whether the statute itself applies to her claim for relief.

The most favorable argument to be made is that § 321(c) is the

effective date provision for the entire section:          § 321(c) states

to what and when the statute itself (not merely its definitions) is

to be applied; the statute is to be applied to (1) “actions” that

are “taken” (2) on and after the date of enactment.               Thus, she

asks, to what “actions” is the statute referring.          On that point,

she contends, the words of the statute are ambiguous, and thus


     3
      Indeed, this provision was cited by the Supreme Court in St.
Cyr as an example of a statute that was clearly retroactive. See
533 U.S. at 319.

                                     7
undermine any argument that Congress has made a clear statement of

retroactivity.

      “Actions taken,” she argues, is not defined anywhere in IIRIRA

and it is thus unclear what actions are contemplated by the

statute, and who must take them.       She proposes that “actions taken”

arguably are actions that relate to, or are done by, her, including

her   guilty    plea,   the   commencement    of    deportation   proceedings

against her,      and   her   application    for    hardship   relief    --   all

occurring      before   September   30,     1996,    the   date   of    IIRIRA’s

effectiveness.      Thus, the uncertainty of the meaning of “actions

taken” indicates that there is no clear statement of retroactive

intent that IIRIRA applies to her undue hardship claim.

      The government’s position is that § 321(b) expresses a clear

retroactive intent and that § 321(c) further expresses the intent

that the statute encompasses all convictions for harboring aliens

irrespective of when they occurred. The government argues that the

language “actions taken” refers to actions by the representatives

of the Attorney General (such as an IJ or the BIA) to effectuate

and adjudicate deportation orders against a particular alien.

Thus, since the IJ “took action” by ruling on Garrido’s undue

hardship claim in March 1997, nearly six months after IIRIRA’s

effective date, § 321(c) required him to apply the new, retroactive

definition of aggravated felony, “regardless of when the conviction

occurred.”



                                      8
     Garrido replies that “actions taken” is necessarily a broader

category than the government argues, because elsewhere in IIRIRA

the phrase “decision or action of the Attorney General” encompasses

exactly the government’s proposed definition of “actions taken.”

Had Congress meant the same thing it would have used the same

phrase.   Therefore, “actions taken” might also include her action

of pleading guilty and applying for relief.

     The meaning of the phrase “actions taken” is a question of

first impression in this circuit. Five of six other circuit courts

to consider this meaning in a variety of contexts agree with the

government that “actions taken” are decisions of the Attorney

General’s representatives with regard to a particular alien.4   No

circuit court has accepted Garrido’s position that her decision to

plead guilty constitutes an “action taken” that would affect the

statute’s retroactivity.   See cases cited in note 4.

     Although “actions taken” may be more inclusive, we fully agree

that the term includes “actions and decisions of the Attorney

General acting through an immigration judge or the BIA.”    Xiong,

173 F.3d at 607.   But it is also clear to us that “actions taken”

are actions taken under the statute.   Indeed, “actions taken” must

     4
      See Choeum v. INS, 129 F.3d 29, 37 (1st Cir. 1997); Ortiz v.
INS, 179 F.3d 1148, 1155 (9th Cir. 1999); Xiong v. INS, 173 F.3d
601, 607 (7th Cir. 1999); Kuhali v. Reno, 266 F.3d 93, 110-11 (2d
Cir. 2001); Tran v. Gonzales, 447 F.3d 937, 941 (6th Cir. 2006).
But see Mendez-Morales v. INS, 119 F.3d 738, 739 (8th Cir. 1997)
(holding, without full explanation, that that court’s consideration
of the matter was also an “action taken” that required the use of
the amended definition).

                                 9
refer only to such actions taken under the statute because § 321(c)

is an effective date provision for § 321 and it thus only speaks to

“actions” that are “taken” under that section, such as determining

the meaning of “aggravated felony” and thus the availability of

discretionary hardship relief to such felons.     It does not speak to

“actions” that are not taken pursuant to the statute.

     Applying this unmistakable language to Garrido’s situation,

there is no doubt that the IJ’s March 27, 1997 ruling denying her

hardship relief was an “action taken” that caused the expressly

retroactive definition of aggravated felony to apply.5           In other

words, because that ruling, i.e., “action taken,” occurred after

September 30, 1996, § 321(c) compelled the IJ to utilize the

retroactive definition and find Garrido’s conviction to be an

aggravated felony.

     In sum, there is no ambiguity in § 321(c) that would cast

doubt on Congress’s intent that the definition of aggravated felony

is to be applied retroactively with respect to any action taken

that implicates § 321.    Because both subsections (b) and (c) make

clear in express words that the new definition of aggravated felony

applies   to   all   convictions   without   regard   to   the   date   of

occurrence, IIRIRA § 321 meets the high bar, delineated in St. Cyr,

for a statute to be found to express Congress’s intent that it be

     5
       We note that Garrido did not present any argument to this
court that, because of the timing of her proceedings before the IJ,
she should have instead been subject to IIRIRA’s “transitional
rules.” See IIRIRA § 309(c)(1), (4), 110 Stat. 3009-625, 626.

                                   10
applied retroactively.   We therefore reject Garrido’s claim that

the application of the statute to her crime and conviction is

impermissibly retroactive.

                               III

     Garrido’s petition for review and motion for stay of removal

are hereby

                                                     D E N I E D.




                                11
