720 F.3d 1111
9th Cir.2013Background
- Cardenas-Delgado, a U.S. permanent resident since 1976, challenges removal after an aggravated felony conviction from 1991.
- Convicted by jury of sale of cocaine; sentenced to three years in prison (1991).
- In 2006, he faced removal proceedings under § 237(a)(2)(A)(iii) based on an aggravated felony; sought § 212(c) relief.
- IJ pretermitted the § 212(c) relief finding ineligible due to the trial-based conviction; removal was ordered.
- BIA affirmed in 2011; the appeal seeks to overturn on retroactivity grounds after IIRIRA's repeal of § 212(c).
- Supreme Court decision in Vartelas (2012) informs the retroactivity analysis governing the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repeal of § 212(c) relief is impermissibly retroactive as applied to a trial-convicted alien | Cardenas-Delgado argues repeal attaches new consequences to his pre-repeal conviction. | Government argues no retroactive effect without reliance requirement and relies on St. Cyr framework. | Retroactive as applied; repeal attaches new consequences to his trial conviction. |
| Whether a reliance showing is required to prove impermissible retroactivity under the repeal of § 212(c) | Cardenas-Delgado contends reliance is not required post-Vartelas. | Government maintains reliance is needed per prior Ninth Circuit position. | No reliance required; the repeal is impermissibly retroactive because it imposes new consequences on past conduct. |
| What controlling retroactivity framework applies post-Vartelas and St. Cyr | Vartelas undermines preexisting Ninth Circuit reliance-based approach. | Government argues Landgraf framework remains intact but with different emphasis. | Vartelas governs; the key inquiry is whether the new provision attaches new consequences to past events. |
Key Cases Cited
- Landgraf v. USI Film Products, 511 U.S. 244 (U.S. 1994) (establishes two-step retroactivity framework; presumption against retroactivity)
- INS v. St. Cyr, 533 U.S. 289 (U.S. 2001) (repeal of § 212(c) analyzed under Landgraf framework; reflects retroactivity concerns)
- Vartelas v. Holder, 132 S. Ct. 1479 (U.S. 2012) (no reliance requirement; retroactivity depends on attaching new consequences to past conduct)
- Carranza-De Salinas v. Holder, 700 F.3d 768 (5th Cir. 2012) (repeal of § 212(c) relief retroactive without reliance requirement)
- Atkinson v. Atty. Gen., 479 F.3d 222 (3d Cir. 2007) (reliance not required for retroactivity of § 212(c) repeal (cited in discussion))
- Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) (reliance not required; retroactivity evaluated by new consequences)
- Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. 2002) (early stance on reliance in retroactivity)
- Saravia-Paguada v. Gonzales, 488 F.3d 1122 (9th Cir. 2007) (reliance-based retroactivity discussion in § 212(c) context)