Gallegos-Vasquez v. Holder
2011 U.S. App. LEXIS 3869
| 9th Cir. | 2011Background
- Gallegos-Vasquez is a Mexican citizen who entered the U.S. as a Special Agricultural Workers (SAW) beneficiary in 1987 and automatically adjusted to lawful permanent resident status in 1990.
- He pled guilty in 1989 to two misdemeanors (receiving known stolen property and hit and run with property damage) and in 1992 to burglary; the government did not place the misdemeanor documents in the record, but he admitted the underlying facts in removal proceedings.
- SAW allowed discretionary termination of temporary status if three or more misdemeanors occurred, but termination was not exercised; automatic adjustment to LPR was still possible if he remained eligible.
- Removal proceedings in 1998 were based on burglary (and later charges) with the IJ and BIA sustaining removability, while noting the IJ had not relied on the misdemeanors.
- In 2002–2005 the BIA reopened proceedings to consider § 212(c) relief under St. Cyr; the IJ denied; the BIA affirmed; Gallegos-Vasquez petitioned for review in this court.
- The central issue is whether IIRIRA retroactively denies § 212(c) relief, given St. Cyr’s reliance-based protection for pleas entered before IIRIRA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of BIA challenge | Gallegos-Vasquez did not waive challenge to BIA decision | Gallegos-Vasquez focused on IJ decision, implying waiver | No waiver; challenge to BIA preserved |
| Availability of § 212(c) relief under St. Cyr | St. Cyr entitles relief despite IIRIRA repeal | IIRIRA retroactivity bars relief | IIRIRA does not retroactively bar § 212(c) relief; remand for proceedings consistent with St. Cyr |
| Guilty pleas evidence for 1989 misdemeanors | Counsel's statements support pleas; government cannot disregard | No documentary plea evidence in record; burden on plaintiff | Evidence compels finding that 1989 misdemeanors were pled as guilty |
| Settled expectation of § 212(c) relief | Like Perez-Enriquez, Gallegos-Vasquez had a settled expectation of relief at plea | No settled expectation due to non-immediate eligibility and discretionary termination | Gallegos-Vasquez had a settled expectation of § 212(c) relief when he pled guilty in 1989 |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (Supreme Court 2001) (retroactivity of IIRIRA under settled expectation of § 212(c) relief)
- United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003) (plea-derived protection under § 212(c) when not immediately deportable at plea)
- Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. 2006) (en banc; relevance to settled expectation under § 212(c) for SAW applicants)
- Landgraf v. USI Film Prod., 511 U.S. 244 (Supreme Court 1994) (two-step retroactivity framework)
- Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc; contextual discussion of § 1212.3 relief)