823 F.3d 756
2d Cir.2016Background
- Petitioner Domingo Santiago Nuñez Peña, a Dominican Republic native, seeks review of the BIA’s December 16, 2014 decision affirming an IJ’s denial of relief from removal.
- He has three aggravated-felony convictions from 1991 and several controlled-substance convictions from 1997, 1999, and 2011.
- He seeks relief under former INA § 212(c) (available for some pre‑IIRIRA guilty pleas under INS v. St. Cyr) and cancellation of removal under current INA § 240A(a).
- Under § 240A(a), cancellation requires (inter alia) no prior aggravated-felony conviction; § 240A(c)(6) bars cancellation for aliens who previously received § 212(c) relief.
- Peralta-Taveras v. Attorney General governs that (1) § 240A(a) plainly bars aggravated felons from cancellation and (2) § 240A(c)(6) prevents cancellation after § 212(c) relief, so an alien with both pre- and post-IIRIRA convictions cannot obtain relief by combining the two forms.
- Nuñez Peña contends Peralta-Taveras was undermined by the Supreme Court’s retroactivity decision in Vartelas v. Holder; the Second Circuit rejects that argument and denies the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peralta-Taveras still precludes cancellation when petitioner has pre‑IIRIRA aggravated-felony convictions plus post‑IIRIRA convictions | Peralta-Taveras was effectively overruled or undermined by Vartelas; applying §240A(a) to pre‑IIRIRA conduct is retroactive and impermissible | Peralta-Taveras remains binding; §240A(a) and §240A(c)(6) validly bar cancellation for aggravated felons and after §212(c) relief | Peralta-Taveras remains valid; petition denied |
| Whether Vartelas requires treating §240A(a) as retroactive when it disqualifies aliens with pre‑IIRIRA aggravated-felony convictions | Vartelas’s retroactivity analysis applies and forecloses retroactive imposition of §240A(a)’s disability on pre‑enactment convictions | Vartelas distinguishes statutes aimed at post‑enactment dangers (like §240A(a)); no comparable retroactive effect exists here | Vartelas does not disturb Peralta-Taveras; §240A(a) applies as construed in Peralta-Taveras |
Key Cases Cited
- Peralta-Taveras v. Attorney General, 488 F.3d 580 (2d Cir. 2007) (holds aggravated-felony convictions bar §240A relief and §240A(c)(6) bars cancellation after §212(c) relief)
- INS v. St. Cyr, 533 U.S. 289 (2001) (applies presumption against retroactivity to preserve some §212(c) eligibility for pre-IIRIRA guilty pleas)
- Rosenberg v. Fleuti, 374 U.S. 449 (1963) (pre-IIRIRA rule limiting when returning travel qualifies as an "entry")