Jorge Contreras Pineda v. Jefferson Sessions
706 F. App'x 351
9th Cir.2017Background
- Petitioner Jorge Contreras Pineda, a Salvadoran national, unlawfully entered the U.S. in 1988 and pleaded guilty in 1989 to forcible rape under California Penal Code § 261(a)(2), receiving a three-year sentence.
- At the time of conviction (1989), the INA did not list rape as an "aggravated felony," but the INA was later amended (by IIRIRA) to include rape in the definition of aggravated felony.
- Petitioner conceded removability but sought relief under the Nicaraguan Adjustment and Central American Relief Act (NACARA); the IJ and BIA denied relief, concluding the rape conviction was an aggravated felony rendering him ineligible.
- Petitioner also could have sought suspension of deportation under the now-repealed INA § 244(a)(2) for crimes involving moral turpitude if he had been continuously present for ten years after the offense; by 1996 only ~8 years had passed since his conviction.
- The panel considered whether the expanded definition of "aggravated felony" applies retroactively to his 1989 conviction and whether denial of eligibility for the repealed suspension relief was impermissibly retroactive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioner's 1989 rape conviction is an "aggravated felony" making him removable and ineligible for NACARA relief | Contreras argued he was convicted before rape was added to the aggravated felony definition, so he should not be treated as having an aggravated felony | Government argued IIRIRA’s expanded definition of aggravated felony (including rape) applies to convictions before enactment | Held: The expanded definition applies retroactively; the 1989 rape conviction is an aggravated felony, barring NACARA relief |
| Whether denying NACARA relief here is impermissibly retroactive | Contreras argued retroactive application penalizes him based on pre-enactment conviction | Government argued Congress expressly applied the amendment to past convictions; prior precedent supports retroactivity | Held: Retroactive application is permissible; precedents (Aragon-Ayon, St. Cyr) support applying the change to earlier convictions |
| Whether Petitioner was eligible for suspension of deportation under repealed INA § 244(a)(2) at the time of repeal | Contreras argued he had been present long enough or that repeal unfairly deprived him of discretionary relief | Government argued he had not completed the required ten years of continuous presence by the time IIRIRA took effect, so he never became eligible | Held: Petitioner was ineligible both at conviction and at repeal (only ~8 years elapsed), so he lost only a prospective opportunity |
| Whether loss of opportunity to seek suspension of deportation impairs a vested right (impermissible retroactivity) | Contreras argued losing the chance to become eligible is an unconstitutional retroactive impairment | Government argued loss of prospective eligibility is not a vested right and is not impermissibly retroactive | Held: Loss of opportunity to become eligible does not impair a vested right; denial of relief is not impermissibly retroactive (citing Valencia-Alvarez) |
Key Cases Cited
- Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000) (California rape statute qualifies as a rape offense for INA purposes)
- Aragon-Ayon v. INS, 206 F.3d 847 (9th Cir. 2000) (IIRIRA’s aggravated-felony expansion applies retroactively)
- INS v. St. Cyr, 533 U.S. 289 (2001) (discussing retroactive application of immigration amendments and statutory language applying to past convictions)
- Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. 2006) (loss of an opportunity to become eligible for relief does not create a vested right against retroactive changes)