Margarita Garcia-Ramirez v. Alberto R. Gonzales, Attorney General

GARCIA-RAMIREZ, Margarita

Petitioner, GONZALES, Attorney R.

Alberto Respondent.

General,* 02-73546.

No. Appeals, States Court

United

Ninth Circuit. Feb.

Argued Submitted 26, 2005. Aug.

Filed * States, R.App. P. pursuant to Fed. prede- the United substituted for his Alberto Gonzales is 43(c)(2). cessor, Ashcroft, Attorney General John Rios, P.S., Cantor,

Manuel F. Rios Se- WA, attle, petitioner. for the Anthony Nicastro, Immigra- P. Office of Counsel, D.C., tion Washington, for the respondent. NELSON,

Before: D.W. FISHER and GOULD, Judges. Circuit FISHER; by Judge Concurrence by Judge Concurrence GOULD. PER CURIAM: Margarita Garcia-Ramirez, Petitioner Mexico, native citizen of petitions for of a review decision of the Board of Immi- gration Appeals (“BIA”), affirming without (“IJ”) opinion Immigration deci- denying sion her for cancella- tion of removal because her failure to 10 years physical establish of continuous presence in the United States. Garcia- Ramirez asserts the BIA and im- IJ permissibly applied pres- the continuous requirement ence of 8 U.S.C. (the rule”)1 “90/180-day retroactively to provides 1. The any period ''[a]n from the United States for in ex- alien shall be considered have failed to days any periods cess or for in the physical presence maintain continuous aggregate exceeding days.” 8 U.S.C. (b)(1) United States under subsections 1229b(d)(2). statutory All citations herein- (b)(2) departed of this section if the alien has 1229b(b)(l) or, in the alter- ineligible for cancel- relief automatically her find native, voluntary departure. departed she of removal because lation between for five months United States found The IJ Garcia-Ramirez removable Our de- September prior April and charged request and denied her claims under governing similar cisions In cancellation of removal. order to be Illegal Immigra- rules of transitional removal, for Garcia- eligible cancellation Responsibility Immigrant and tion Reform had Ramirez to demonstrate continuous (“IIRIRA”), Pub.L. No. 104- Act of in the physical presence United States 309(c), reject us to her compel § 1229b(b)(l)(A). § years. less than 10 claim. rule Applying 1229b(d)(2), § found Garcia- the IJ I. in had Ramirez’s five-month absence interrupted pres- her otherwise continuous entered the United Garcia-Ramirez May 1988 and the service of ence between has, but illegally May in 1988 and States to in 1998. Be- appear her notice October absence, country con- for one lived more cause Garcia-Ramirez’s lasted April Gar- tinuously since then. days, years than had than 90 and less States to visit cia-Ramirez left the United reentry in elapsed September between her to the in Mexico. She returned family appear, and service of the notice to It is September 1989. United States determined that Garcia-Ramirez the IJ on five-month absence the effect of this ineligible for cancellation of removal. was presence of time of continuous her accrual granted alterna- The IJ Garcia-Ramirez’s of this that is crux the United States voluntary departure. request for tive appeal. BIA, appealed to the Garcia-Ramirez 10, 1997, and April Immigration On affirmed the IJ’s decision without which (“INS”)2 initiated Service Naturalization filed opinion. Garcia-Ramirez thereafter against proceedings removal Garcia-Ra- for with our We petition review court. her an alien the United present mirez 1252(a) § deny and jurisdiction have being paroled. without admitted or States petition review. agree Garcia-Ramirez’s parties physical presence time ended on accrual of II. 7,1998, was October when she served asserts that the an IJ.3 March Garcia-Ramirez appear to before On 90/180- notice cannot be day in immi- appeared Garcia-Ramirez 1. court, not be- provision her because that did gration allegations admitted to the to until and she and reen- requested that law left appear notice to and come the United States 1989. She her removal tered grant IJ cancellation of appear an IJ. of a to before otherwise indicat- service notice after are to U.S.C. unless 1229b(d)(l). initially Gar- ed. The INS served April appear to cia-Ramirez with notice 2. INS abolished On March was However, spec- to this notice failed agency Department of Justice as an within the ify the date or location Garcia-Ramirez’s the new- its functions were transferred to hearing. was immigration Garcia-Ramirez Security. Department ly of Homeland created hearing until proper notice not served with 1229(a), service 1998. Under IIRIRA, October physical an alien’s accrual of Under appear Garcia- ended this second notice proceed- presence time when removal ends presence. physical through accrual of against the Ramirez's ings are commenced alien challenges immigration implicate that because she laws maintains eligible legitimate process for cancellation of re- remained due considerations that moval under the in effect the time law need not be exhausted in administrative departure reentry, her proceedings give because the BIA cannot 1229b(d)(2) retroactively Bagues-Valles, eliminates her relief on such claims. See preexisting right to relief from removal Accordingly, 779 F.2d at 484. we have thereby process. jurisdiction offends due We first review Garcia-Ramirez’s government’s argument claim though address even it was not jurisdiction we do not have to review the raised the BIA. before petition then turn merits of Retroactivity B. claim.

Garcia-Ramirez’s to We turn the merits Garcia-Ra- A. Jurisdiction that mirez’s claim should not IJ have government challenges our applied 90/180-day rule jurisdiction to pe review Garcia-Ramirez’s 1229b(d)(2) § to find that her five-month tition, asserting that failed she to exhaust in absence 1989 terminated continuous administrative remedies because she did 1229b(d)(2) physical presence. Section present not her claim to the provides bright-line a an alien 1252(d)(1) § “may BIA. Under we review a “shall be considered to failed to main- have final if only order removal the alien has physical tain continuous in presence all exhausted administrative remedies if United departed States” alien “has of right.” available the alien as Ba any period from the States United for INS, (9th gues-Valles v. 779 F.2d 484 days any excess of 90 or for periods (“As Cir.1985); see a general also id. aggregate exceeding days.” 180 Garcia- rule, not an issues raised before adminis Ramirez does not contest if trative tribunal cannot raised on appeal be 1229b(d)(2) § applies retroactively, her tribunal.”). from that Because the BIA five-month absence in 1989 would violate jurisdiction does not have to resolve consti 90/180-day rule. however, challenges, process tutional due until From 1986 IIRIRA’s effective date than alleging only claims—other those 1997, however, in April the relevant stat “procedural errors” within the pow BIA’s ute provided that a from departure er to exempt redress —are this ad United did not States continuous break ministrative requirement. exhaustion presence “brief, casual, if it was and inno Vargas Dept. Immigration v. U.S. cent not meaningfully and did interrupt Naturalization, (9th 908 Cir. physical presence” continuous [alien’s] 1987). 1254(b)(2) (1995). § the United States. claim is properly statutory Garcia-Ramirez’s “The purpose evident [of this an viewed as assertion that standard to recognize person was] that a 1229b(d)(2) § rule of who requisite her lives for [the number of process impermis years] violates due because of in the United does not States de retroactivity. sible See INS v. St. stroy eligibility by 533 actions that do not [her] U.S. 150 L.Ed.2d affect living [her] commitment to in this (2001) (recognizing country.” Castrejon-Garcia has v. (9th power legislation, Cir.1995). enact retroactive F.3d Under this confirming rule, but are pre-IIRIRA there constitution purposes of evalu “[f]or al on retroactivity). brief, limits Retroactivity ating single whether absence is occurring ... will should be to conduct days be law absences excess enactment, case-by-case basis.” inquiry its ends and evaluated on before 240.64(b)(1); C.F.R. to Congress’ C.F.R. must defer command. we 1240.64(b)(1). Garcia-Ramirez contends Otherwise, proceed Landgraf we s sec- flexible 1254 standard more step ond and ask “whether the new statute continuous to evaluate her must be used effect, ie., would have retroactive whether applying presence because impair rights possessed a party it would retroactive. impermissibly would be acted, liability party’s he when increase conduct, or past impose new duties already com- respect to transactions decision its landmark pleted.” If the Id. new law would Products, 511 U.S. USI Film effect, the “traditional such a retroactive (1994), L.Ed.2d 229 teaches that new presumption [the statute] principles forth the Supreme Court set govern....” Id. does whether determining consider must applied retroactively. statute should against “the ret- Noting presumption that is rooted legislation deeply roactive step Landgraf requires first doc- legal and embodies a

jurisprudence, Congress has di us to “ascertain whether Republic,” older than our trine centuries requisite clarity with the that the rected that, plain terms stated Court applied retrospectively.” be law [ejlementary considerations of fairness at 2271. The Su 533 U.S. S.Ct. have dictate that individuals should preme has that “[t]he Court cautioned to know what the law is and opportunity finding unambiguous di for such standard accordingly; their conform conduct one.” Id. demanding “[C]ases rection is lightly should not be expectations settled tru Supreme] has found where Court [the reason, “princi- For that disrupted. author ly adequately ‘retroactive’ effect legal of conduct ple that effect statutory by a statute have involved ized ordinarily be under should assessed that it could language that was so clear took that existed when the conduct law Lindh v. only interpretation.” one sustain appeal.” place has timeless universal 4, n. 117 521 U.S. 328 S.Ct. Murphy, (quoting Id. 114 Kaiser at S.Ct. 1483 (1997). L.Ed.2d Garcia- Bonjorno, Corp. Aluminum & Chemical exacting this argues Ramirez 827, 855, 110 S.Ct. U.S. standard, apply congressional intent to (1990) (Scalia, J., concur L.Ed.2d retroactively cannot 90/180-day rule ring)); at see INS v. St. 533 U.S. § contains no found because temporal its intended statement light principles,, of these reach. two-step approach Court articulated a reject her law us to compels Prior circuit presumption the normal evaluating when held, in a series of argument. We apply. against should cases, “transitional IIRIRA’s related to “de Our task” under is “first IIRI- rules,” govern application which Congress expressly has termine whether eases that provisions to permanent RA’s reach.” prescribed proper the statute’s date, on IIRIRA’s effective pending were Landgraf, 511 U.S. intent clearly unambiguous congressional that a expressed If contain Congress has that the stop-time4 90/180-day Act’s suggested Congress which intended apply retroactively. Although rules the transitional apply stop- rules to directly govern Ram, transitional rules do not retroactively. time rule See case, Garcia-Ramirez’s it would be incon- F.3d (quoting 515-18 IIRIRA 309(c)(5)(A)). gruous to hold that Congress § intended to apply the 90/180-day petitioners rule to We later followed Ram in Mendiola- governed by rules, those but not to Gar- (9th Ashcroft, Sanchez v. 381 F.3d 937 cia-Ramirez. Cir.2004), 309(c)(5)(A) to hold that re- Congress IIRIRA,

When enacted it in- quires retroactive cluded the statute a set of 90/180-day Mendiolas, “transitional rule as well. The specifying particular rules” provisions governed by whose case was the transi- permanent of the apply rules, statute should argued tional that a five-month petitioners against whom they the INS had al- took in 1993 should not bar their ready initiated proceedings eligibility before the for suspension be- statute’s effective date. See IIRIRA pre-IIRIRA “brief, casual, cause the 309(c). express- These transitional rules innocent” standard rather than IIRIRA’s ly provide that two of IIRIRA’s provisions 90/180-day rule should apply peti- to their relating to presence continuous stop- claim, rejected tion. We their reasoning —the time rule and the rule—“shall that “it very unlikely apply to orders to show ... cause issued intended apply only stop-time on, before, the date of the retroactively, enact- and not the 90/180-day rule. after 309(c)(5)(A) ment of 309(c)(5)(A) this Act.” IIRIRA IIRIRA states that both added). (emphasis provisions apply to deporta- aliens whose tion proceedings pending were on the date “before, on, We first addressed this or of IIRIRA’s enactment and there is no language after” in Ram v. indication provisions that the two should (9th Cir.2001). argued Ram that the applied differently.” be Id. at 941. stop-time specifies rule —which that an period alien’s physical continuous pres- compel These cases us to reach the same ence ends when proceedings conclusion here. Garcia-Ramirez correct- begin not applied petition be to his ly argues § that does not re- —could because the INS had initiated proceedings an express flect congressional intent that it against him IIRIRA took before effect and applied should be retroactively, and we application of the rule to him would have agree with her past that use of the present an impermissible retroactive effect. We tense—“an alien shall be considered to disagreed. found unambiguous We the have failed to maintain pres- continuous statute’s instruction that stop-time the rule ence” if departed” the alien “has from the applied petitioners to who fall under the United States for more than days 90 —is transitional rules whose orders to show an ground insufficient from which to infer on, cause before, were “issued or the such intent under the Landgraf standard. after IIRIRA],” date of enactment Mendiola-Sanchez, [of and also however, holds that relied on legislative IIRIRA’s history, statute, the broader IIRIRA specifically ''stop-time” 4. The provides rule “any pe- (b)(2) section, that under subsection of this when riod of continuous residence or continuous the alien appear is served a notice to physical presence 1229(a) title, (B) in the United States shall of this when the alien (A) be deemed except to end offenses], in the case of an has committed [certain criminal who-applies alien 1229b(d)(l). for cancellation of removal whichever is earliest.” rules, permanent to 309(c)(5)(A) provisions apply whereas the the transitional Gareia-Ramirez. Neither Gareia-Ramirez unambiguous congressional contain does could have when nor Mendiolas known 90/180-day rule be intent they took their to Mexico that trips did not retroactively. Although INS casual, “brief, and innocent” standard against Garcia-Ra- proceedings initiate abrogated IIR- date, replaced would be IIRIRA’s effective until after mirez rule, 90-day bright IRA’s line and the gov- rules do not thus the transitional Mendiolas, who their to received orders 309(c)(5)(A) part petition, ern her date, cause IIRIRA’s effective show before persua- IIRIRA and stands as statute argu- seemingly compelling have the more evidence, by construed Mendiolctr- sive provisions should ment IIRIRA’s new Sanchez, apply to intended to them. apply who, rule to non-citizens 90/180-day Gareia-Ramirez, like the Mendiolas already we held IIRI- Because than of more country periods left rules contain express RA’s transitional days passage. before IIRIRA’s apply congressional intent the 90/180- day petitioners country rule to who left the rule Declining apply than days for more before IIRIRA’s incongru- produce here therefore required that we passage, we conclude are circum- result. ous Garcia-Ramirez’s petitioners, to all such apply closely those the Men- resemble stances governed by whether their cases are diolas, even arguably whose claims were permanent IIRIRA’s transitional rules or than those of Garcia-Ra- compelling more provisions. country illegally mirez. She entered country May 1988 has lived Petition DENIED. ex- continuously that date with the since FISHER, Judge, with Circuit whom of her ception five-month NELSON, Judge, Circuit D.W. Senior Mendiolas, family in Mexico. The

visit joins, concurring: however, continuously had resided longer, even since 1983. Although United States for hold Mendiola-San (9th years accumulating Ashcroft, of continuous F.3d 937 Cir. After chez v. States, 2004), application of compels in Mendiola to affirm presence the United us Garcia-Ramirez, 90/180-day in 1993 to we took a six-month to Mexico the by we un parents joined reluctantly his and was his do so because remain care for that 243 F.3d 510 Although convinced Ram trip. for five of that son months (9th Cir.2001), the result reached required not daughter, who had Mendiola’s wife Mendiola-Sanchez, and we be Mexico, in because from traveled to received relief pre would that Gareia-Ramirez lieve applica- the deportation, upheld we BIA’s step of under the second the retro- vailed rule to Mendio- 90/180-day tion of the Mr. activity Landgraf v. test articulated in USI la and his son. Products, 114 S.Ct. Film U.S. legal The between these two distinction (1994). L.Ed.2d fortuity the that solely cases derives panel The articulat- Mendiolctr-Sanchez the proceedings against INS the initiated holding in the regret ed its own day IIRIRA’s effec- Mendiolas one before retroactively 90/180-day apply rule must place but Gareia-Ramirez tive date did not to the Mendiolas: proceedings in until after the stat- removal Although deny petition we for re- The transitional ute became effective. case, proper conclu- because that is the thus the Mendiolas’ view rules controlled statutes, panel sion under the relevant we Mendiola-Sanchez did not consider Ram, in pause recognition injustice question, present this second only this result.... reason the before its reaching conclusion that Ram ineligible suspension slate, Mendiolas are controlled. a blank On we would 309(c)(5)(A) they stayed too construe expressing as con- long help gressional 90/180-day Mexico to Mr. Mendiola- to apply intent parents elderly Sanchez’s recover from rule to all petitioners whose cases were unexpected injuries. pending on when IIRIRA became effective April only but to their absences Mendiola-Sanchez, 381 F.3d at 941. country post-date from the IIRIRA’s Nonetheless, panel concluded that the enactment on September 1996. Admit- reasoning “core of the in Ram applie[d] to tedly, the then only rule would affect day and that it “very rule” was 90/180 very petitioners. small apply- class of But unlikely that Congress apply intended to standard, ing the Landgraf we would not only stop-time rule retroactively, and read the attach penalties trips statute to day not the rule.” Id. at 940^41. 90/180 passed IIRIRA, taken Congress before ab- Accordingly, held that panel Ram con- express, unambiguous sent congressional trolled and petition denied Mendiolas’ intent to do so. for relief. Further, if Mendiola-Sanchez required

We do not think that Ram erred finding congressional result intent Mendiola-Sanchez. Section 309(e)(5)(A) 309(c)(5)(A) (included respectfully of IIRIRA —which rules”) think it accept binding did but which we statute’s “transitional instructs that stop-time us—we believe Garcia-Ramirez rules should be entitled to petitioners whose remand for reconsid- cases were eration pending petition of her under on IIRIRA’s effective the old stan- date wheth- dard. clearly er their orders Where has not to show cause were issued “on, before, otherwise, specified or the traditional pre- after” IIRIRA’s enactment. sumption regard rule, against retroactivity With if stop-time applies to the this provision statute would have unambiguous constitutes retroactive effect. con- gressional intent statute be ap- A statute has it retroactive effect when plied retroactively: regardless of when an away impairs takes rights or vested ac- issued, alien’s order to show cause was her quired laws, existing under or creates presence must, accrued continuous time new obligation, imposes a duty, new 309(c)(5)(A), stop on that date. attaches disability, respect a new 309(c)(5)(A) Application §of to the already 90/180- transactions or considerations rule, however, day slightly is compli- more past. cated changes because it the rules as to INS v. 533 U.S. petitioner

actions the already has taken. (2001) S.Ct. 150 L.Ed.2d 347 (quot- Ram, 309(c)(5)(A)

Under requires ing Landgraf, 511 U.S. at 114 S.Ct. 1483) (internal 90/180-day omitted) apply petitioners rule to quotation marks added). whose pending cases were when (emphasis IIRIRA Retroactivity analysis effective, became “commonsense, but Ram has no effect on involves a judg- functional a subsequent question even if ment about provision whether the new at- —whether applies the 90/180-day petition- to a taches new legal consequences to events case, er’s it to applies trips enactment,” completed she took its is and before before Congress passed IIRIRA. by The “informed guided familiar consider- not, reliance, in law change should notice, departure. reasonable fair ations of in- clearly expressed Congressional (quoting absent Id. expectations.” and settled 357-58, tent, retroactively. eligibility her Hadix, bar 527 U.S. Martin v. (1999)) a converts a five-month When statute 144 L.Ed.2d 347 119 S.Ct. omitted) (em eligibility for relief losing from risk of (internal marks quotation certainty, added). from removal to an automatic phasis greater need is there for notice and what face, On its conform one’s behavior to the chance to 1229b(d)(2) long after to Garcia-Ramirez new, paradigm rule? is a bright-line This trip to her 1989 five-month the fact of legal imposing instance of the law new disability, a new clearly “attaeh[es] Mexico disability completed on an event be- based already past.” transaction] to respect [a Nonetheless, changed. be- fore the law trip, Garcia- time she took her Id. At the us, agree Gould does not cause would that her absence Ramirez risked for specific arguments will address the “brief, to have been judged not later be against retroactivity. innocent,” effectively casual, thereby 1229b(d)(2) imper- returned the clock when she should be restarting Section assurance, an missibly applied did not have retroactive as Garcia- 1990. She therefore, and return rule au- departure that her Ramirez because the effect; but she for can- tomatically ineligible adverse makes her have no would removal, have reason to believe whereas she likewise did not cellation of automatically ineligible would automati for such five-month absence not be her “brief, time and restart casu- negate pre-IIRIRA her accrued relief under the cally applying al, She did not is the effect and innocent” standard. the clock—which 1997 stat was rule of the an that her absence bright-line the new seek assurance difference, innocent”; “brief, casual, in- for “There is a clear in fact ute. stead, argue this retroactivity analysis, sought eligibility between she purposes facing Analogous- cer deportation and to the BIA on remand. facing possible point 325, 121 Supreme at S.Ct. Court held deportation.” ly, Id. in St. tain discretionary elimination of applying 2271. Because that IIRIRA’s legal aggravated conse “attaches new for aliens convicted Garcia-Ramirez relief retroactively before its en completed to events felonies could not be quences actment,” impermissibly pled guilty had before doing so has to an alien who 321, 121 at at S.Ct. See id. effect. Id. IIRIRA’s effective date. retroactive 357-58, Martin, 527 U.S. (quoting S.Ct. Landgraf, 511 U.S. (quoting point cannot Although Garcia-Ramirez 1483)). that the Su- quid pro quo to the kind to have occurred preme presumed fair Court fairness and Elementary notions of by has Court reliance, guilty plea notice, expec- settled —a —the quo as the quid pro forth in no means set also counsel tations and commonsense that a statute demonstrating only route presump- traditional applying favor of Rather, impermissibly retroactive. nonretroactivity. Garcia-Ra- tion of When essential. consideration is single “[n]o had no reason trip, took her she mirez re- analysis Retroactivity automati- absence would that her believe analysis of whatever independent quires for re- eligibility cally disqualify her can any of which may apply, the law factors lief; reasonably rely on she could retroac- impermissible ground finding of her governing the effects at the time as 944 States, application.” Chang

tive v. United before the rules promulgated, were be (9th 911, Cir.2003); 327 F.3d n. they see cause impose a new exhaustion States, Hughes also requirement Co. v. United away right and take Aircraft notice); appeal U.S. without fair see also Kan (1997) (9th (emphasizing L.Ed.2d 135 that “the kamalage v. 335 F.3d Cir.2003) Court has used various (applying formulations to Cyr concluding St. conceptio[n] describe the functional of leg- regulation impermissibly that a attached a (internal retroactivity”) quotation islative disability new to an guilty plea, alien’s omitted); marks Restrepo McElroy, v. examining without whether spe the alien (2d Cir.2004) (“[T]he F.3d cifically Court bargained eligibility suggested never that all parties who claim time of plea); United States v. Velas co-Medina, (9th that a statute has a retroactive effect must 305 F.3d 849-50 Cir. 2002) disruption quid pro show the of a quo (holding that Velasco-Medina could exchange. And it of keeping would be out not reasonably relied on possibili reasoning Cyr of St. ty [] read of relief under legal landscape at the quid pro quo requirement such a into that time guilty plea).1 he entered his [], opinion. Cyr For in St. the Court disagree Thus we with Judge Gould that ‘categorical arguments observed that are applying Cyr to Garcia-Ramirez’s situ- particularly not helpful undertaking ation would constitute an extension either commonsense, Landgrafs functional retro- Cyr of St. or of retroactivity analysis more ”) activity analysis.’ (quoting Indeed, generally. both the Third and the 2271). U.S. at 121 S.Ct. Fourth recently rejected Circuits have Nor does our circuit law impose addi- contention that retroactivity analysis re- requirement tional that in order to estab- quires actual type reliance or the of quid law, lish reliance on the old petitioner pro quo exchange present Cyr. See must in all circumstances demonstrate ac- Ponnapula Ashcroft, v. 373 F.3d 491- tual, subjective (3d Cir.2004) quid pro quo reliance or a 93 & n. 9 (holding that Su- exchange to impermissible establish retro- preme requires Court law “reasonable” not activity. may reliance, “Reasonable reliance itself “actual” observing Cyr that “St. upon quid be based pro quo, Cyr as St. easy was an case on the retroactivity is- ... or merely sue,” on assurances as to the noting presence of a current status of Chang, the law.” 327 quid pro quo is evidence of a reliance (citation omitted) F.3d at interest); 920 n. 8 (holding Olatunji Ashcroft, (4th Cir.2004) new INS rules could not be to 383 (holding that consider- investors petitions approved whose were ation of reliance is statutory irrelevant Judge challenges Gould question reliance on of what might other circumstances Velasco-Medina, discussing evidence reliance. Kankamalage stating defen- expectations, dants' reliance and both cases that "these de-emphasiz- cases do not assist in turn on the state of the law at the time that ing importance Supreme Court in St. entered, was not on the defendant’s reliance, Cyr placed on reasonable settled ex- subjective Thus, expectations at that time. pectations vested interests." that, we held Cyr unlike St. and Kankama- Gould agree concurrence at We lage, Velasco-Medina did not have settled ex- reliance, require these cases but 212(c) pectations §of relief because AEDPA objectively reasonable reliance. As both put might him on notice that such relief guilty pleas, they cases involve follow St. expectations be available and his "must have holding guilty plea that a is evidence of shaped by legal been the then-current land- Velasco-Medina, speak reasonable reliance and do not scape.” to the 305 F.3d at 849. alternatively, 10-year that that IIRIRA’s new can retroactivity analysis; reliance, not only objectively petitioners present to who were reliance, subjective required). the United States before its enactment. Jimenez-Angeles any did not forfeit part hallmarks of retroac- There are several of her accumulated time—or any suffer that tivity present here that demonstrate consequences could by she have avoided to of the rule Gar- changing prior her actions once her contin- expectations, upsets cia-Ramirez settled presence began running uous clock had “[tjhere First, is a clear without notice. requisite she known the time would be difference, purposes for the years. person extended to 10 A in Garcia- deporta- analysis, facing possible between situation, hand, Ramirez’s on the other facing deportation.” certain tion and could, notice, simply have remained By Cyr, 533 U.S. within 90/180-day pa- the bounds of the offense, pleading guilty charged to the rameters of the new law. deportation risked eventual and denial 212(c) Supreme relief. The Court Third, considerations reasonable reli turning possibility explained that against ance and fair notice counsel certainty have “a deportation into would application of to Garcia-Ra Similarly, severe retroactive” effect. Id. mirez. Garcia-Ramirez’s expecta “settled months, by leaving country for five by tions shaped must been the then- deporta- risked eventual Garcia-Ramirez legal landscape.” current Velasco-Medi that tion on a later determination based na, 849; 305 F.3d at see also Kankama “brief, casual, was not her absence lage, 335 F.3d 863. When the “relevant Applying innocent.” IIRIRA now to her occurred, past namely event” Garcia-Ra conduct, however, past potential makes her decision to mirez’s leave the United States ineligibility suspension deportation for days, in 1989 for more than 90 she could course, absolute. Of Garcia-Ramirez had reasonably on existing have relied law to little accrued time when she took her departure that conclude her would not nec brief, But to Mexico however essarily restart clock on a to bid estab accrued time has turned out to be vital to physical presence lish continuous ability satisfy physi- her to the continuous Landgraf, United States. 511 U.S. at presence requirements. cal contrast, By 114 S.Ct. 1483. Jimenez- Second, significant there is a Angeles believing difference had no basis law for past time turning between statute extends the her relevant her event— required qualify possible to relief from self before IIRIRA’s effective date— extending place the duration from sev cause the her into would INS removal— years proceedings en one that reaches back before IIRIRA’s —and automatically pre-IIRIRA conduct and effective prior sub date under law. 602; Jimenez-Angeles, tracts it from one’s accrued continuous See 291 F.3d at see Thus, presence. applying presumption Lopez-Urenda Ashcroft, also v. 345 F.3d (9th Cir.2003); against retroactivity way Vasquez-Zavala here in no (9th holding Jimenez-Ange Ashcroft, conflict with our 1107-08 Cir. (9th 2003).2 Cir.2002), Ashcroft, relying les v. 291 F.3d 594 Far on the mere subsequently April aspect 2. We have into effect on 1997—had no settled relied on this Jimenez-Angeles concluding expectations they subject two would be asylum applications deportation proceedings pre-IIRIRA aliens who filed under shortly proceedings law March before IIRIRA went rather than removal 1997— to decision re- by in 1989 sume Garcia-Ramirez’s hope beneficence days than 90 had statuto- main in Mexico for more aliens as Garcia-Ramirez such temporary how their same had ry assurance about would have been 1229b(d)(2)’s90/180-day be evaluated. See 8 limita- departures absolute 1254(b)(2) (1995); Chang, 327 U.S.C. on the books instead. tion been n. F.3d at 920 8. require- dispense would not with the We Kankamalage, Cyr, Chang in As simply reliance. We ment finding impermissible objectively reasonable that an find it to be depend here would not on Garcia-Ramirez Garcia-Ramirez, contemplating a alien like n actually, subjectively re- showing that she trip outside the United States 1254(b)(2) when she lied on 8 U.S.C. reasonably rely then-applica- on the could the United See St. departed States. legal being not later convert- ble standard 322-25, (pre- 533 U.S. at S.Ct. automatically restarted the ed one suming quid pro quo proof without clock on her continuous because presence reliance); Olatunji, actual see also 90-day limit—a limit she she exceeded (“St. purport at did not F.3d stayed could have within had been subjective requirement; reliance add Therefore, applying rule at the time. it to a set of facts applied rather departure imper- to her 1989 ret- that indicated ‘an obvious and severe legal consequences new missibly attaches ” (citing roactive effect.’ 533 U.S. IIRIRA. that did not exist before See 2271) added)); (emphasis Landgraf, 511 U.S. at S.Ct. 1483. (“The Ponnapula, 373 F.3d at 491 Su- agree Judge Gould that Con- preme required actual We Court has never in for- gress superordinate Land- retains its role reliance or evidence thereof cases, mulating reformulating immigra- graf line of and has fact assidu- require- Judge tion laws. See Gould concurrence ously eschewed an actual reliance ment.”). Rather, statutory at 11679. But it is settled law given so, express intent temporary doing Congress structure in 1989—in which ab- must its See, e.g., Cyr, judgmental, clearly. sences were assessed under a 533 U.S. discretionary pre- Congress not 2271.3 has not done so standard —-we would Vasquez-Zavala, gration Judge IIRIRA. See 324 F.3d at law reform. See Gould con- impermissibly 1108. IIRIRA was not retroac- REAL ID Act currence at 954 n. il- asylum applicants applied tive as to these very point, because it contains lustrates our because, Jimenez-Ange- as was the case when express provisions instructing that certain in, “any expectation les turned herself that an changes in the law should be retro- INS action would thereafter commence could only prospectively. spectively and others support expectation not a sufficient as to Act, 109-13, See REAL ID Pub.L. 119 Stat. (emphasis when it would commence.’’ Id. exists, express 231. Where such instruction original); Lopez-Urenda, see also 345 F.3d at Congress has can be confident holding (extending Vasquez-Zavala’s weighed of retroactive the costs and benefits asylum applications aliens who filed before consid- of the new laws and has passage September IIRIRA's on be- potential hardships imposed ered the on in- assuming asylum applica- cause even their dividuals who took actions under the old denied, applicants tions would be “did not law. Absent such evidence that expectations proceed- settled as when weighed has and considered the effects of its commence”) (em- ings against them would actions, legislation prior we would new phasis original). upset expectations petition- the settled trips who took un- points ers like Garcia-Ramirez Gould to the REAL ID Act as Congress implementing legal landscape. example immi- der the old applied the new it is respect applying arising cause a case with 90/180- taken before IIRIRA’s day trips rule to antedating conduct the statute’s enact- passage, and Gareia-Ramirez has demon- ment, upsets expectations or in prior based objectively reliance on strated reasonable 269, Landgraf, law.” 511 at 114 U.S. S.Ct. Mendiola-Sanchez, But for prior law. (internal omitted). Rather, 1483 citation “deeply pre- rooted” apply we would question of whether constitutionally retroactivity in favor of sumption against impermissible consequences result from a (and Mendiolas). Gareia-Ramirez See retrospective statute’s application is a 265, Landgraf, 511 at 114 U.S. S.Ct. 1483. “commonsense, judgment functional ... guided by ‘familiar considerations of fair

GOULD, Judge, concurring: Circuit notice, reliance, and settled ex- Fisher, separate in his concur- ” Hadix, pectations.’ Marlin v. 527 U.S. rence, “reluctantly” agrees states that he 343, 357-58, 1998, 119 S.Ct. 144 L.Ed.2d governing precedent that our similar (1999) (quoting 347 Landgraf, 511 U.S. at under the transitional rules of IIRI- claims 1483). 270, 114 S.Ct. “A statute has retro- requires peti- RA that Garcia-Ramirez’s active effect when it away impairs denied. v. takes tion be See Mendiola-Sanchez (9th Cir.2004) Ashcroft, 381 F.3d 937 laws, rights acquired existing vested (9th Cir.2001). 510 Ram v. obligation, or creates a imposes new a new My colleague separately able writes to ex- duty, or disability, attaches new in re- that, he plain his further view were review- spect to transactions or al- considerations ing petition Garcia-Ramirez’s “on a blank ready past.” Cyr, 321, St. 533 U.S. at 121 slate,” proceed step he to the second (internal quotation 2271 S.Ct. marks omit- retroactivity analysis1 Landgraf ted). However, “application of new petition grant- conclude that the should be passed statutes after the events in is suit turn, separately, my ed. I write many unquestionably proper situations.” views, I responsive differently conclude Landgraf 511 U.S. at 114 S.Ct. 1483. that, upon if to apply we were called Land- Cyr the Supreme St. Court’s most re- grafts step, application second of the pronouncement cent on Landgraf s retro- 90/180-day rule to Gareia-Ramirez would activity analysis immigration con- impermissibly not result an retroactive text, guide and we must look to it to our Supreme prece- effect under the Court’s Felton, Agostini own review. See 521 dent. 203, 237, L.Ed.2d

U.S. I (1997) (instructing ap- lower courts to ply precedent— the Court’s most direct A im- produce new statute does not permissibly “merely clearly Cyr looking retroactive effect be- St. this case—when reach”). Cyr, Supreme proper statutory In Court affirmed and statute's If the lan- two-part standard, for ad analy- reiterated framework guage does not meet this dressing potentially retroactive statutes that proceed Landgrafs prong, sis must second Landgraf v. USI was established in Film Prod asking whether the of the statute ucts, 511 U.S. 114 S.Ct. impermissible "produces an retroactive ef- (1994). Applying L.Ed.2d 229 121 S.Ct. fect.” U.S. test, Congress ask "whether court must first per opinion, In our curiam we con- clarity requisite has directed with the that the one, Landgraf analysis step clude our hold- retrospectively.” law be ing compels prior that our circuit law 2271; U.S. at 121 S.Ct. see also Land Congress IIRIRA's conclusion that intended graf, (holding 511 U.S. at apply retroactively. rule to "expressly prescribe! ] must controlling authority). right I to a trial and enter into the guidance and Cyr agreement: in some detail. begin by reviewing St. agreements quid pro quo involve a

Plea A criminal and the between a defendant exchange per- for some government. permanent was a lawful Enrico St. benefit, waive several ceived defendants pled guilty aggra- who to an resident alien rights (including constitutional of their felony charge. St. 533 U.S. at vated trial) right grant gov- to a the At of his 121 2271. the time S.Ct. benefits, tangible ernment numerous guilty plea, Cyr’s St. conviction rendered imposed promptly punishment such as however, him he was then still deportable; expenditure prosecutorial without the of discretionary de- eligible for a waiver of resources. There can be little doubt portation permanent that was available for that, matter, general as a alien defen- 212(c). § pursuant resident aliens to INA considering dants whether to enter into repealed Attorney Id. IIRIRA Gener- agreement acutely a of plea are aware deportation to waive al’s discretion immigration consequences of their 212(c), it in replacing part § relevant with frequency convictions. with Given 1229b(a)(3), § which excluded U.S.C. 212(c) granted in the which relief was anyone aggravated felony of an convicted years AEDPA IIRI- leading up to from the relief of cancellation of removal. RA, preserving possibility of such 297, 121 Id. at S.Ct. 2271. Because his princi- relief would have been one of the proceedings were not commenced removal pal sought by benefits defendants decid- date, until after IIRIRA’s effective St. ing accept plea whether to a offer or longer possi- avail himself on the could no proceed instead to to trial. bility discretionary of relief. The Court granted Cyr’s ap- certiorari on St. habeas 321-23, at 533 U.S. S.Ct. decide, alia, peal, depriv- inter “whether (internal marks, footnotes, quotation ing removable aliens of consideration for omitted). citations The Court concluded 212(c) produces impermissible an relief respondent that because the “almost cer- who, retroactive effect for aliens like[St. tainly upon” relied the likelihood of receiv- Cyr], pursuant plea were convicted to a 212(c) “in ing deciding relief whether to agreement at a time when their would trial, forgo right [his] the elimination ineligible not have rendered them for possibility] by of IIRIRA [that ha[d] 212(c) 320,121 relief.” Id. at 2271. S.Ct. obvious and severe retroactive effect.” Id. 2271. S.Ct. Proceeding prong under the second Landgraf analysis, Court held B 212(c) applying §of repeal to aliens into plea agreements separate “who entered Fisher his concur- they expectation eligible acknowledges would be rence that Garcia-Ramirez clearly for quid pro quo [ ] relief ‘attaches new disabil- lacks the that was central to ity, respect analysis to transactions Cyr. Judge or consider- the Court’s ” already past.’ ations Id. at Fisher concurrence at He S.Ct. 943-44. does (quoting Landgraf, analy- not view this omission as fatal to U.S. his 1483) added). sis, however, (emphasis contending S.Ct. Central to the conclusion reliance is not the non qua Court’s was the alien’s sine for effect, possibility holding impermissible reliance” on the “reasonable retroactive discretionary deciding taking relief in to waive his and no doubt solace that impermis existing legal right the outer limit of reliance on pre- did not “define retroactivity.” Hughes discretionary Co. IIRIRA sible relief standard. Aircraft States, fact, 520 U.S. contrary v. United view the absence of (1997). 1871, 138 record, L.Ed.2d 135 very evidence it seems un- that, likely when she went to for Mexico Supreme I that the Court has not agree months, five she was even conscious any made one factor of our heretofore suspension relief of or its retroactivity analysis dispositive. Howev physical presence requirement, continuous er, stray I from the Court’s say nothing exception “brief, of its immigration example instructive casual, and innocent” trips. Even more Agostini, context. See 521 U.S. at unlikely possibility any is the that she in Cyr exchanged his “vest way tailored her to conform with that relying trial on the as legal right ed” standard. The differences between St. him sumption that it would not make auto Cyr’s predicament and Garcia-Ramirez’s matically deportable. This reliance was telling status are and worth repeating: significant percent the given reasonable Cyr, Unlike St. Garcia-Ramirez had no 212(c) age granted of resident aliens re right” gave “vested that she up bar- Cyr, lief at the time. See St. 533 U.S. at gained away; she had no “reasonable reli- 322-23, By entering 121 into a S.Ct. ance” on the law as it IIRIRA was before Cyr “grant[ed] in turn plea agreement, St. reforms; implemented Congress’s and she government ‘tangible numerous bene expectations” had no “settled of the effect fits, promptly imposed punishment such as of her action in departing the United expenditure prosecutorial without ” 321, Cyr, States. See St. 533 U.S. at resources.’ Id. at S.Ct. 2271 S.Ct. 2271.2 (quoting Rumery, Newton v. 480 U.S. n. 94 L.Ed.2d 405 S.Ct. Downplaying importance of reason- (1987)). rights reliance and vested able to the St. hand, Garcia-Ramirez, peti- Cyr analysis, my colleague Judge on the other Fisher hoping possibility Cyr opinion tioned our court for the notes that the Court its St. trip Cyr’s a five-month “presume[d]” quid pro quo. to avail herself of she having country Judge took after been in the ille- Fisher concurrence at 946. He gally year, for less than a and introduced thus concludes that there is no need to no evidence whatsoever that she made her address the fact that there is no evidence trip any expectation immigra- with how Garcia-Ramirez could have reason- about ably consequence. Cyr, pre- tion law Unlike St. relied on or even knew about Instead, view, can bargain away any Garcia-Ramirez did not IIRIRA law. his Moreover, pre-IIRIRA person objectively of the if a could have relied on a nature "brief, casual, absence, and innocent” standard belies precise guideline permissible for the conclusion that Garcia-Ramirez or aliens perhaps a better case could be made that in a similar circumstance could have reason- objectively reasonably rely aliens could and it, ably in connection with a five- relied exiting reentering on it in and then the coun- sojourn of the States. month outside United try light accord with that time frame. In “brief, casual, and innocent" standard standard, ambiguity prior and the vague ambiguous, and and Garcia-Ramirez's apparent contrast of five months with its might qualify five-month not excursion element, written, any pur- “brief” as it was “brief, casual, enough. and innocent” If the ported reliance—for a of five months— pre-IIRIRA permitted eligibility standard had objectively properly be described as cannot suspension departures rule, longer of a duration "reasonable.” than 90/180 Cyr’s plea bargain, reli- in St. was central simply impute assume and nothing retroactivity analysis. E.g., ance to Garcia-Ramirez Court’s (“Given “statutory in 323, more than the structure frequency S.Ct. 212(c) Fisher concurrence at 1989.” See granted with which relief was disagree. 946. I leading up to AEDPA and IIRI- years RA, preserving possibility of relief In the case of St. the reasonable principal one of the bene- would have been presumed by factor could reliance be (footnote omitted). Cyr sought.”) fits St. there made Court because the evidence predicament Faced with this and with no objectively rea- apparent reliance both in sight, 121 evidence of reasonable reliance 533 U.S. sonable. See (“There that, my colleague arguments. can be little doubt able makes two matter, alien defendants con- general First, subjective as a points he out that actual to enter into a sidering whether needed, not reliance is Garcia- acutely immi- are aware of the agreement objectively Ramirez’s case shows an rea- convic- gration consequences their reliance. But the idea that reli- sonable tions.”); (“Preserving right the client’s id. subjective not an actual reli- ance need be may States remain United new, nothing ance is does address any po- to the client than important more necessary what evidence is to show reason- sentence.”); jail id. at 322 n. tential ableness. The Court considered (citing requiring state laws trial quid pro quo example to be of reason- defendants of the immi- judges to advise able, reliance, subjective, pre- actual or gration consequences plea agree- of their Cyr’s suming St. reliance because of the ments); 121 id. at 323 n. S.Ct. 2271 general immigrant course reliance on (citing the Amicus Brief the National 212(c) possibility of INA discretion- Lawyers Association of Criminal Defense ary guilty pleas relief when were entered. “competent defense for the conclusion contrast, here, By suggestion there is no counsel, following the advice of numerous illegal immigrants generally display guides, would have advised practice St. “brief, casual, any reliance on the and in- Cyr concerning provision’s impor- leaving country nocent” standard in (“Prior tance”); at 121 2271 id. S.Ct. many reentry illegal months before sta- IIRIRA, Cyr AEDPA aliens like St. tus.3 significant receiving had a likelihood of relief.”). 212(c) Second, Judge separate Fisher his concurrence concludes that reasonable reli- contrast, sharp In the record in this case ance can be assumed for Garcia-Ramirez any is void of evidence that Garcia-Ra- (and case) every thus similar from the “brief, casual, mirez even knew of the general legal landscape” “statutory “old standard, say nothing why innocent” Judge structure 1989.” Fisher concur- assumption it reasonable she 946 & n. trip purposely assumption timed her rence 3. But this could have ques- effectively avail of it. But there is no casts out reasonable reliance herself rebanee, assessment, tion that reasonable as illustrated from our disre- view, 2271). My colleague my also relies on the Court’s U.S. at 121 S.Ct. this phrase phrase "[t]here in St. is a clear differ- cannot be divorced from its context in ence, purposes retroactivity analy- Cyr, Cyr's for the St. tied to where it was St. reason- sis, facing possible deportation availability between able reliance on the of discretion- facing deportation.” ary pled certain Fisher relief from when he (quoting Cyr, guilty. concurrence at Jayantha garding Kankamalage the Court’s sensible instruction was alien who, repeatedly Cyr, pled guilty otherwise: “As we have coun- like St. to a convic- seled, particular tion that judgment whether would not have automatically dis- retroactively qualified in- acts should be him for relief from deportation statute guided by pre-IIRIRA familiar consider- under law. Kankamalage, formed notice, reliance, 335 F.3d at 860. impor- ations of fair We reiterated the “[tjhere tance of expectations.” reasonable reliance: can and settled (internal little ... doubt alien quota- defendants U.S. omitted) added). considering whether to enter into a (emphasis tion marks agreement acutely are aware of the immi- My colleague’s misapply test would gration consequences of their convictions.” step of the Court’s seminal Land- second Id. at (quoting U.S. graf analysis, making step this second 2271) (alteration original). formality analysis that inescapably will regulations Because the current would au- jurisprudential lead to a dead-end whenev- tomatically disqualify Kankamalage from “statutory Congress er alters the struc- relief, we viewed the case as Cyr,” “like St. analysis, ture.” that form of were Under concluding petitioner, that the again, based adopted, presumption against it retro- quid pro guilty on the quo plea, his had legislation likely applied active would be legitimate expectations, settled and had explicitly whenever has not de- reasonably pre-IIRIRA relied law. Id. retroactivity, satisfying clared the first We therefore held that the regulation as Landgraf of the test. line of prong petitioner to the was impermissibly by my analysis proposed colleague would retroactive. Id. at 864. go one-step far to reduce to a analysis. Pedro pled guilty Velasco-Medina also pre-IIRIRA statutory law and the retroactively amendments him made ineli-

C gible for cancellation of removal. Velasco- Medina, However, 305 F.3d at 843-44. Recognizing Cyr cannot support St. case, distinguished Cyr St. position his that this case is a “paradigm that, passage concluded because the of impermissible retroactivity, instance” of AEDPA already any possi- had foreclosed my colleague help prior looks for from our 212(c) bility §of at the relief time Velas- precedent. Judge Fisher concurrence guilty plea, pe- co-Medina entered his the (citing Kankamalage 945-46 v. titioner, possessed unlike never St. (9th Cir.2003), 335 F.3d and Unit- rights acquired existing vested under Velasco-Medina, ed States v. 305 F.3d Thus, laws.... Velasco-Medina could (9th Cir.2002)). But 849-50 these cases do developed not have the sort of settled in de-emphasizing impor- not assist the 212(c) expectations concerning relief Supreme Cyr placed tance the Court in St. Cyr’s plea bargain that informed St. reliance, expecta- on reasonable settled Cyr that animated the St. decision. tions, interests, and vested as illustrated through quid quo pro plea the of a bar- fact,

gain. Kankamalage both and Ve- anticipated ... To the extent he the 212(c) hinge question lasco-Medina on the of availability continued of relief af- a pre-IIRIRA guilty whether reliance on guilty plea, expectations ter his his were plea was reasonable and created settled neither reasonable nor settled under St. expectations. Cyr. (internal cases). (citing at 944-45 no quotation marks rence While

Id. at omitted). question Far from minimiz- and citations court has addressed the exact Cyr’s quid pro us, ing importance my St. of our sister circuits’ before canvass Kankamalage and Velasco-Med- quo, addressing retrospective both precedents an alien’s reliance and ina turn on whether IIRIRA application provisions of other re- stemming guilty plea from expectations a authority great weight veals that and reasonable. These cases were settled a Far places emphasis due on reliance. “legal landscape” discussing mention the reliance, analyzing minimizing courts plea bargains, effect of but Kankama- retroactivity IIRIRA un- provisions correctly cannot lage and Velasco-Medina routinely prong der s second change a urged support making be properly significance stress the of reliance “legal landscape” “statutory Reno, See, Cyr. e.g., under Rankine v. —or Judge puts it—a structure” as Fisher also (2d Cir.2003) (“[T]he F.3d issue test unto itself.4 played a of reliance has central role my sup- Supreme Court’s and the circuit courts’ colleague properly

Nor can find analysis reasoning respect for his in extra-circuit case port cases, AEDPA.”); Third of IIRIRA and Chambers v. law. He cites two from the (4th Cir.2002) Reno, respectively, Fourth which 307 F.3d 289-90 Circuits “key emphasize importance (recognizing did not of rea- reliance was the Cyr’s retroactivity analysis).5 sonable reliance. Fisher concur- event” Landgraf analysis step 4. A two Garcia- 5. Most circuits have declined to find reason- analysis impermissible able reliance and retroactive Ramirez's case would akin Ashcroft, beyond agreement Jimenez-Angeles plea context of 291 F.3d 594 effect (9th Cir.2002). Jimenez-Angeles Cyr. provision frequently litigat- dealt with most 212(c), repeal almost the exact same situation we face here: ed has been IIRIRA’s of INA provision Cyr. the retroactive of the continuous the same at issue in St. Most presence requirement impermissibly re- courts have held IIRIRA not for cancellation of moval, 1229b(d). petitioners did 8 U.S.C. Like Garcia- retroactive who Ramirez, agreement Jimenez-Angeles plea Alma Delia had no not enter like St. be- law, cause, rights pre-IIRIRA quid pro quo plea vested under ex- without the of the otherwise, pressed through bargain agreement, no evidence exists from which to merely hoped processed pre- petitioner's but to be show reasonable reliance on the See, Swaby suspension pre-IIRIRA provision. e.g., v. Ash- IIRIRA instead (2d Cir.2004) croft, cancellation of removal because she had ful- 161-62 212(c) temporal presence (holding repeal requirement that IIRIRA's of INA filled because, Jimenez-Ange- impermissibly the former but not the latter. was not retroactive les, Analyzing petitioner proceed 291 F.3d at 597. the unlike St. to retroac- chose tivity step Landgraf, agreeing plea claim under two of to trial instead of to a and rely “expectation” "hope” detrimentally held that or that "did her therefore not on the 212(c) relief”); suspension availability Montenegro § she could avail herself of de- of v. of (7th Cir.2004) portation equivalent Ashcroft, “was not to the settled 355 F.3d curiam) expectation Cyr gained by entering (per (holding repeal St. that IIRIRA's of into (“A 212(c) bargain.” plea plea impermissibly § his Id. at 602 bar- INA relief not retroac- gain exchange petitioners is a which side tive as to "did not formal each who consensually gives, gets, something rights guilt and of abandon or admit in reliance on case, 212(c) relief”); Jimenez-Angeles' eligibility § value. continued there was Rankine, (same); exchange.”). no a at v. such In contrast to formal 319 F.3d Dias (1st Cir.2002) plea bargain any (holding or other evidence of reason- 311 F.3d 212(c) expectations, repeal imper- able and settled of reliance Gar- IIRIRA's was not cia-Ramirez, Jimenez-Angeles, "gave up missibly petitioners like retroactive to who did not only ability living rely pre-IIRIRA illegally her to continue law on because the "retroac- tivity analysis undetected in the United States.” Id. must include an examination of change immigration Congress acted to concurrence separate Fisher’s case, in circuit or a need perhaps repeating not disclose It should not does law. other, court has a federal any which gives superordi- the Constitution reasonable reli- that there was determined Congress, and not to the fed- nate role to manner in which he would ance in the courts, regulating the flow and eral reliance, or devoid of evidence determine immigration content of to United reliance, why whether rationale persuasive changes rapidly, The world States. objectively grounded, subjectively or may pose threats or illegal immigration reasonably presumed for a class should disadvantage to the United States’ securi- similarly peti- to the persons of situated ty, economy, well-being. Congress about tioner, general argument his save flexibility fine-tuning our immi- needs Nor “statutory structure.”6 change Cyr excep- carves out an gration laws. any other my colleague point does able con- tional area where reasonable reliance comparable or a holding case ability Congress to alter strains of impermissi- of IIRIRA temporal provision Cyr But immigration nothing law. bly retroactive. in the fed- immigration progeny or its law far-reaching a

II eral courts makes welcome impermissible retro- pronouncement immigration of any In almost instance activity likely change from will follow reform, that a it will be the ease law ratio- “statutory structure.” Such a residing were illegal multitude of aliens ability nale would restrict “legal and its within the United States reform, in law the absence implement “statutory structure” when landscape” Reno, reliance”) "a likelihood er could not show (citing Mattis v. 212 F.3d 31 (1st Cir.2000)); Ashcroft, pre-IIRIRA law nor a detri- 283 F.3d success under Brooks Cir.2002) law”). (11th (holding pre-IIRIRA mental reliance on 212(c) impermissibly ret- repeal was not because, above, my Cyr, petitioner only cases that explained unlike St. 6. As roactive agreed rely upon language equivalent colleague relying "did not so choose to on cites upon plea” a and because his case language terms of "statutory is the to its structure” quid present "the same concerns did not landscape” language "legal of Velasco-Medi exchange, pro quo, between benefit for an na, Kankamalage, 335 F.3d at government”). defendant and the cases in But neither of those F.3d rationale, upon as both such fact relies extend St. Courts have declined to reli hinge upon evidence of reasonable See, provisions of IIRIRA as well. other (or thereof) arising ance lack Ashcroft, e.g., Uspango v. Cyr. quo, just agreement's quid pro as in Cir.2002) (3d (holding 863-64; Velasco- Kankamalage, 335 F.3d ten-year pres- cancellation of removal's Medina, recently, in More F.3d at 850. requirement petitioner was not ence to the Gonzales, IIRIRA’s we held that Kelava v. impermissibly ”[u]nlike because retroactive 212(c) impermissibly repeal of INA petitioner] can in St. [the the situation who en applied to an alien retroactive as pre- demonstrate no detrimental reliance activity that occurred gaged a terrorist gave up petitioner] "[the law” and [IIRIRA] prior to IIRIRA’s enactment. government] rights re- [the no ... nor did here, (9th Cir.2005). in Rela- As relevant petitioner’s ac- any from [the ceive benefits plea importance of va we Crocetti, reiterated tion]”); Velasquez-Gabriel v. applying the showing reliance in (4th Cir.2001) (holding F.3d 108-09 analysis Cyr: "We of St. 241(a), requiring § of removal that IIRIRA context, because of removed, Cyr to the cabined St. did not previously ordered aliens existing in that law the alien’s reliance impermissibly operate retroactive because, at 629. petition- situation.” Id. manner unlike Affairs; retroactivity, of Hawaiian explicit declarations of and of Office negative Akana, capaci would have unforeseen conse- in his official Rowena immigration for the laws.7 quences ty trustee of the Office of Hawaiian as Affairs; Cataluna, Donald his offi supports our denial Mendiola-Sanchez capacity cial as trustee of the Office petition reaching Landgrafs of the without Affairs; Linda Dela of Hawaiian However, step. second were we to reach Cruz, capacity in her official as trus step, deny I the second would still Affairs; tee of the Office of Hawaiian petition because the of the Clayton Hee, capacity in his official “imper- rule would not have an as trustee of the Office of Hawaiian missible retroactive effect.” Affairs; Machado, Y.

Va Colette capacity her official as trustee of the Hawaiian; Ota, in Office of Charles capacity as his official trustee of Affairs; of Hawaiian Oswald Office Stender, capacity K. official his as of the Af- trustee Office Hawaiian ARAKAKI; Evelyn Arakaki; fairs; Waihee, IV, F. D. offi- Earl C. John his Bugarin; capacity Edward P. Bur U. Sandra cial as trustee of the Office gess; Carroll; Affairs; Patricia A. Robert M. of Hawaiian United States of Garcia; Toby Chapman; Michael Y. America; Does, through 10; John Kravet; Kuroiwa; M. I. James Fran Georgina Kawamura, in her official Nichols; Scaff; ces M. Donna Malia capacity Depart- as Director of the Scaff; Teshima; H. Jack Allen Thur Finance; Budget ment of Russ Twigg-Smith, Plaintiffs-Appel ston Saito, capacity in her official as lants, Comptroller and Director the De- partment Accounting and General Anthony Sang, Sr., of Ha- State Council Services; Young, Peter in his official waiian Homestead Associations capacity as of the Chairman Board (SCHHA); State Council of Hawaiian Resources; Land and Natural Sandra Associations, Homestead Intervenors- Kunimoto, capacity Lee in her official Appellees, Department Argi as Director of the culture; Liu, capac Ted in his official ity Department as Director of the LINGLE, capac- Linda C. in her official Business, Development ity Economic as Governor of the of Ha- State waii; Tourism; Rodney Apoliona, Chairman, Haraga, Haunani in his offi capacity capacity and in her official as trustee cial as Director De of the determinations, example, during pendency credibility For of our and the definition deliberations on this matter enacted organizations of terrorist and terrorist related 109-13, the REAL ID Act of Pub.L. See, 1252(a) e.g., activities. 8 U.S.C. Stat. 231. The REAL ID Act alters several 106(a) Act, by amended of the REAL ID provisions Immigration Nationality of the 305, 310; 1158(b) Stat. 8 U.S.C. as amend- Act, amending provisions governing the INA 101(a)(3), (c), (d)(2) by § ed of the REAL judicial amending review as well as cer- Act, 302, 303; ID 119 Stat. 8 U.S.C. governing asylum tain standards and other 1182(a)(3)(B) by as amended of the 103% removal, including forms of relief from bur- Act, REAL ID 119 Stat. 306-309. corroboration, proof, dens of testimonial

Case Details

Case Name: Margarita Garcia-Ramirez v. Alberto R. Gonzales, Attorney General

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 26, 2005

Citation: 423 F.3d 935

Docket Number: 02-73546

Court Abbreviation: 9th Cir.