Nuñez Peña v. Lynch, 823 F.3d 756

823 F.3d 756

2d Cir.

2016

JOSÉ A. CABRANES, Circuit Judge:

Petitioner Domingo Santiago Nuñez Peña (“Nuñez Peña”), a native and citizen of the Dominican Republic, seeks review of a December 16, 2014 decision of the Board of Immigration Appeals (“BIA”) affirming a September 2, 2014 decision of an Immigration Judge (“IJ”) denying his applicatiоns for a waiver of deportation under former Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), and cancellation of removal under current INA § 240A(a), 8 U.S.C. § 1229b(a). See In re Domingo Santiago Nuñez Peña, No. A014 818 653 (BIA Dec. 16, 2014), aff'g No. A014 818 653 (Immig.Ct.Buffalo Sept. 2, 2014). Nuñez Peña was ordered removed on the basis of three aggravated-felony convictions dating from 1991 and four controlled-substance convictions dating from 1997, 1999, and 2011; our review is therefore limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D). Nuñez Peña’s submission raises questions of law, see Centurion v. Holder, 755 F.3d 115, 118 (2d Cir.2014); Richmond v. Holder, 714 F.3d 725, 728 (2d Cir.2013), but we resolve none of them in his favor.

To avoid removal, Nuñez Peña requires two forms of relief. As of 1991, when he was convicted of three aggravated felonies, “the Attorney General was authorized to grant disсretionary relief from exclusion or deportation under former § 212(c) of the INA.” Peralta-Taveras, 488 F.3d at 583. With the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), § 212(c) was repealed and effectively replaced with § 240A(a), which empowers the Attorney General to “cancel removal ... of an alien who is inadmissible or deportable ... if ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the alien” has (1) been “lawfully admitted for permanent residenсe for not less than 5 years,” (2) “resided in the United States continuously for 7 years after having been admitted in any status,” and (3) never “been conviсted of any aggravated felony.” 8 U.S.C. § 1229b(a).

Under INS v. St. Cyr, a case decided on the basis of the presumption against retro-activity, Nuñez Peña remains eligible for § 212(c) relief with respect to his 1991 convictions to the extent that such relief was available to him at the time he entеred his guilty pleas. See 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). But Nuñez Peña’s 1997, 1999, and 2011 convictions occurred after the enactment of IIR-IRA; as a result, relief from the consequenсes of those convictions must be had, if at all, under § 240A(a). See Peraltau-Taveras, 488 F.3d at 583. Accordingly, Nuñez Peña may avoid removal only by demonstrating that he is entitled to relief under both § 212(c) and § 240A(a).

As is made clear in our decision in Peralta-Taveras, two independent barriers stand in his way. First, “[t]he text of § 240A(a) is clear and unambiguous — cancellation of removal is not available to aliens who have been convicted of an aggravated felony.” Id. at 584. This bar would prevent Nuñez Peña from securing cancellation of removal even if he were to obtain а § 212(c) waiver, because the granting of such a waiver “does not expunge the underlying offense or its categorization as an aggravated felony.” Id. Second, “Section 240A(c)(6) [of the INA] expressly precludes cancellation of removal for aliens who havе previously received relief ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under § 212(c),” a prohibition that applies “whether or not the applications [under each provision] are simultaneous.” Id. at 585. On two fronts, then, Nuñez Peña’s petition fails under our case law.

Recognizing as much, Nuñez Peña argues that Peralta-Taveras did not survive the Supreme Court’s 2012 decision in Varíelas. Varíelas, like St Cyr, was a retroactivity case. It concerned a petitioner who had, prior to the enactment of IIRIRA, pleaded guilty to a counterfeiting offense. See Vartelas, 132 S.Ct. at 1485. Before IIRIRA, this cоnviction did not affect the petitioner’s ability to make a brief trip outside the United States, because— under the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449, 461-62, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963) — a lawful permanent resident’s return from such a trip did not qualify as “entry” into this country. See Vartelas, 132 S.Ct. at 1484. But IIRIRA superseded Fleuii by subjecting one returning from a jaunt abroad to “admission” procedures and, with them, potential removal from the United States on the ground of inadmissibility. See id. at 1484-85. In Varíelas, the Court concluded that, if applied to the petitioner, IIRIRA’s “admission” provision — by attaching a new disability, in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the form of an effective bar on foreign travel, to his pre-IIRIRA conviction — would operate with retroactive effect. See id. at 1486-88. Congress having failed to make clear that it desired retroactive application of the provision in question, the Court held that it applied only prospectively. See id. at 1491-92.

Relying on Varíelas, Nuñez Peña argues that § 240A(a)’s bar on eligibility for aggravated felons would operate retroactively if applied to preclude cancellation of remоval for a person (like him) convicted of an aggravated felony prior to IIRIRA’s enactment. We are not convinced.

Nuñez Pеña’s attempt to liken his post-IIRIRA convictions to the post-IIRIRA conduct at issue in Varíelas (i.e., taking a short trip outside the United States) falls flat. In detеrmining that IIRIRA imposed a “new disability” on old conduct through its “effective[ ] ... ban on travel outside the United States,” the Varíelas Court emphasized that the “[l]оss of the ability to travel abroad is ... a harsh penalty.” Id. at 1487-88. Nuñez Peña — who never enjoyed, in the sense relevant here, the “ability” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to violate controlled-substance law-lost nothing comparable when IIRIRA was enacted.

Of course, one might characterize Nuñez Peña’s “new disability” slightly differently: not as the loss of the ability to violate the law, but as the loss of the ability to violate the law without forfeiting his eligibility for discretionary relief from removal. But Varíelas has an answer for that argument, too. The Varíelas Court explicitly distinguished from the provision before it laws that “do not operate retroactively” because “they address dangers that arise posten-actment.” 1 Id. at 1489 n. 7. It offered as an example of such a law one thаt prohib its convicted felons from possessing firearms. See id. at 1489. The provision of which Nuñez Peña complains operates in the same fashion as a felon-in-possession statutе applied to a person convicted of a felony before the statute’s passage: it takes account of pre-enactment conduct but aims principally at post-enactment danger.

We therefore conclude that Varíe-las did nothing to unsettle our decision in Peralta-Taveras — which, we pause to note, was neither blind to nor silent оn the question of retroactivity. We observed in that case that the inquiry into whether a statute operates with retroactive effect “should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations,” and that “[a]t the time of [the petitioner’s] 1997 guilty plea for attempted marijuana possession — a controlled substance offense subjecting him to removal ... — [he] was on notice that his prior [aggravated-felony] convictions would preclude him from seeking § 240A rеlief if convicted of another removable offense.” Peralta-Taveras, 488 F.3d at 584 n. 2 (internal quotation marks omitted). Those observations ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are as sound now аs they were' before Varíelas. Accordingly, Nuñez Peña — who, like the petitioner in Peraltar-Taveras, was on notice “[a]t the time of [his controlled-substance convictions] ... that his prior [aggravated-felony] convictions would preclude him from seeking § 240A relief if convicted of another removable offense,” see id. — is not entitled to the relief he seeks.

CONCLUSION

In sum, the Supreme Court’s decision in Varíelas does not cast doubt on our decision in Peralta-Taveras, and the rule of Peralta-Taveras precludes relief in this cаse. The petition for review is accordingly DENIED.

Notes

. The petitioner’s offense, the Court observed, did not answer to that description: "The act of flying to Greece ... does not render a lawful permanent resident like Vartelas hazardous.” Vart elas, 132 S.Ct. at 1489 n. 7.

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