An Na Peng v. Holder
2012 U.S. App. LEXIS 5981
| 9th Cir. | 2012Background
- Peng, a China native and current U.S. LPR since 1991, was charged in 1996 with conspiracy to defraud INS for aiding exam cheating.
- Prior to trial, the law balanced potential deportability with § 212(c) relief for those convicted of crimes involving moral turpitude.
- AEDPA (April 24, 1996) extended deportability for certain crimes involving moral turpitude and limited § 212(c) relief.
- IIRIRA (Sept. 30, 1996) repealed § 212(c) and imposed seven-year § 212(h) residency requirement for waivers, with retroactivity contested here.
- Peng was tried (May 1996) and convicted; she received probation; removal proceedings began Sept. 1997.
- BIA denied relief under § 212(c) post-repeal, and Peng sought review, arguing retroactive entitlement and due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion by denying continuance to seek § 212(c) relief | Peng relied on § 212(c) availability when proceeding to trial | IIRIRA’s repeal forecloses § 212(c) relief regardless of trial | Yes; continuance abuse; Peng may apply for § 212(c) relief on remand |
| Whether § 212(c) relief is impermissibly retroactive as applied to Peng | Pre-IIRIRA law permitted relief due to reliance on trial outcome | IIRIRA repeal applies retroactively with no reliance protection | Yes; retroactive protection applies to Peng due to reasonable reliance on pre-IIRIRA law |
| Whether § 212(h) seven-year residency requirement is impermissibly retroactive | Residency requirement incorrectly applied to Peng in removal proceedings | Residency rule is prospective and rationally applied to LPRs | No; § 212(h) seven-year residency requirement is not impermissibly retroactive |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (U.S. 2001) (retroactivity of § 212(c) and reliance under pre-IIRIRA law)
- Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. 2002) (no reliance on § 212(c) when convicted of aggravated felony after trial)
- Kelava v. Gonzales, 434 F.3d 1120 (9th Cir. 2006) (bright-line rule against § 212(c) relief for trial defendants confronting aggravated felonies)
- Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002) (rational basis review for LPRs under § 212(h) not to non-LPRs)
- Hernandez de Anderson v. Gonzales, 497 F.3d 927 (9th Cir. 2007) (commonsense, functional approach to retroactivity and reliance)
- Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) (reliance beyond guilty-plea cases on retroactivity claims)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (two-step retroactivity framework)
- St. Cyr, 533 U.S. 289 (U.S. 2001) (retroactivity and reliance on pre-IIRIRA § 212(c) relief)