F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 6, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
AN TON IO G AR CIA-OR TIZ,
Petitioner,
v. No. 05-9575
(No. A23 187 158)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General,
Respondent.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.
Antonio Garcia-Ortiz petitions for review of a final order of the Board of
Immigration Appeals (BIA). The BIA’s order summarily adopted and affirmed a
decision of an immigration judge (IJ) that found M r. Garcia-Ortiz ineligible for
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
relief under former section 212(c) of the Immigration and Nationality Act, and
ordered him removed to M exico. W e deny the petition for review.
M r. Garcia-Ortiz is a native and citizen of M exico. He entered this country
at El Paso, Texas on October 17, 1986, as an immigrant. On August 5, 1994, he
w as convicted in a C olorado state court of conspiracy to distribute marijuana. O n
November 14, 1994, he received a 45-day jail sentence and three years’ probation.
Although the documentary evidence in the record is unclear on this point, 1
M r. Garcia-Ortiz contends that he was convicted after a jury trial rather than as
the result of a guilty plea.
M r. Garcia-Ortiz concedes that he is removable from this country as a
result of his drug trafficking conviction. He has, however, requested
discretionary withholding of deportation relief under former 8 U.S.C. § 1182(c)
(1994), known as “section 212(c) relief.” Former § 212(c) authorized “any
permanent resident alien with a lawful unrelinquished domicile of seven
consecutive years to apply for a discretionary waiver from deportation.” INS v.
St. Cyr, 533 U.S. 289, 295 (2001) (quotation omitted). An alien who had been
“convicted of one or more aggravated felonies and has served for such felony or
1
The Alamosa County, Colorado form comm itment order indicates that on
August 5, 1994, M r. “Ortiz Garcia” was “found guilty of, or the court accepted
[his] plea of guilty or nolo contendere to” conspiracy to distribute marijuana.
Admin. R. at 69 (emphasis added).
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felonies a term of imprisonment of at least 5 years,” however, was ineligible for
§ 212(c) relief. 8 U.S.C. § 1182(c).
The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
identified a broad category of offenses that would cause an alien to forfeit
eligibility for § 212(c) relief, including aggravated felonies and controlled
substance offenses. The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) subsequently abolished § 212(c) relief
altogether, and replaced it with a similar form of relief known as “cancellation of
removal.” See M ontenegro v. Ashcroft, 355 F.3d 1035, 1036 (7th Cir. 2004). A s
an alien convicted of an “aggravated felony,” M r. Garcia-Ortiz is ineligible for
IIRIRA’s cancellation of removal, even though he served less than five years’
imprisonment for his offense. See id. His drug conviction would not, however,
disqualify him from § 212(c) relief as it existed at the time of his conviction,
provided that such relief remains available to him notwithstanding the AED PA
modification and the IIRIRA repeal.
M r. Garcia-Ortiz contends that he remains eligible for § 212(c) relief for
two reasons. First, he contends that the presumption against retroactive
legislation applies in his case, because aliens who went to trial prior to the
enactment of IIRIRA had a reasonable reliance interest in the continued
availability of § 212(c) relief. Second, he contends that denying § 212(c) relief to
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aliens like himself, who exercised their Sixth Amendment right to trial by jury,
violates the Equal Protection Clause.
1. Presum ption against retroactive legislation
In St. Cyr, the Supreme Court addressed the issue of w hether IIRIRA’s
repeal of § 212(c) relief applied retroactively to aliens w ho pled guilty to
aggravated felonies prior to the repeal. The Court concluded that in light of
(1) the absence of clearly-expressed Congressional intent to apply the repeal to
such aliens, and (2) the reasonable reliance interest in prior law possessed by such
aliens, demonstrated by their decision to plead guilty, they remained eligible for
§ 212(c) relief. 533 U.S. at 314-26.
St. Cyr did not address the situation of aliens like M r. Garcia-Ortiz, who
proceeded to trial. Following the decision in St. Cyr, the Attorney General
adopted a regulation permitting aliens who had pleaded guilty or nolo contendere
to aggravated felonies prior to AEDPA ’s effective date to apply for § 212(c)
relief. 8 C.F.R. § 1212.3(h). This regulation further provides that “[a]liens are
not eligible to apply for section 212(c) relief under the provisions of this
paragraph with respect to convictions entered after trial.” Id. (emphasis added). 2
In Hem v. M aurer, No. 05-9555, 2006 W L 2383281 (10th Cir. Aug. 18,
2006), however, we held that an alien who proceeded to trial rather than pleading
2
W hile affirming summarily the IJ’s decision in this case, the BIA added a
succinct reference to § 1212.3(h) in its order. See Admin. R. at 2.
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guilty could still possess a sufficient objective reliance interest in § 212(c) relief
to avoid retroactive application of IIRIRA’s repeal of § 212(c). Id. at *15. Under
the objective reliance test, we focus on whether the class of aliens to which an
alien belongs had an objectively reasonable reliance interest that would be
adversely affected by a retroactive application of IIRIRA, not whether a particular
alien actually relied on the availability of § 212(c) relief. Id. at *14. The
petitioner in Hem met this objective reliance standard, because he belonged to the
class of aliens who forewent an appeal from their conviction after trial, thus
evidencing a reliance interest in § 212(c) relief. Id. at *15.
M r. Garcia-Ortiz argues that he belongs, for purposes of this objective
reliance inquiry, to the class of aliens convicted of an aggravated felony who
went to trial rather than pleading guilty. He does not affirmatively argue that his
failure to appeal demonstrates objective reliance on the availability of § 212(c)
relief. M r. Garcia-Ortiz cites no authority indicating that exercising one’s Sixth
Amendment right to go to trial, by itself, constitutes a sufficient showing of an
objective reliance interest to foreclose a retroactive application of the § 212(c)
repeal. 3 See id. at *15 (stating aliens in Hem’s class, who forewent appeal, would
3
The Third Circuit has held that aliens who chose to go to trial, and who
declined a plea bargain offered to them, demonstrated a sufficient reliance
interest to avoid retroactive application of the repeal. Ponnapula v. Ashcroft,
373 F.3d 480, 496 (3d Cir. 2004). M r. Garcia-Ortiz candidly admits, however,
that he does not recall whether he declined a plea bargain. Aplt. Opening Br. at
(continued...)
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suffer new legal consequences from retroactive application because “the
availability of § 212(c) relief would reasonably inform their decision to forego a
constitutional right”) (emphasis added). W e therefore conclude that he has failed
to demonstrate objectively reasonable reliance on the continued availability of
§ 212(c) relief. See Hem, 2006 W L 2383281, at *15 (citing with approval
M ontenegro, 355 F.3d at 1037, to the effect that § 212(c) repeal was not
impermissibly retroactive with respect to aliens “who did not abandon rights or
admit guilt in reliance on continued eligibility for § 212(c) relief.”).
2. Equal Protection issue
M r. Garcia-Ortiz also argues that the agency’s decision in his case, and/or
the regulation implementing St. Cyr, 8 C.F.R. § 1212.3(h), violates the Equal
Protection Clause 4 because it burdens the exercise of a fundamental right by
penalizing those aliens w ho choose to exercise their Sixth Amendment right to
3
(...continued)
13, 24.
M r. Garcia-Ortiz also cites the Fourth Circuit’s opinion in Olatunji v.
Ashcroft, 387 F.3d 383 (4th Cir. 2004), which states that “reliance (whether
subjective or objective) is not a requirement of impermissible retroactivity.” Id. at
388. In adopting an objective reliance approach in Hem, we implicitly rejected
the no-reliance approach discussed in Olatunji. See Hem, 2006 W L 2383281, at
*3-*4.
4
By its terms, the Fourteenth Amendment does not apply to this case, which
involves federal rather than state action. As M r. Garcia-Ortiz correctly notes,
however, the Fifth Amendment’s Due Process Clause also includes an equal
protection element. See, e.g., Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974).
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trial by jury. He contends that since the Supreme Court has granted relief to
aliens w ho pleaded guilty, the same relief must be granted to those who chose to
go to trial.
M r. Garcia-Ortiz’s equal protection claim fails, because he has not
demonstrated any actual violation of his rights. Neither AEDPA nor IIRIRA
makes any distinction between aliens who have pleaded guilty and those who
chose to go to trial. The distinction has been created solely by judicial decisions
that have found a reliance interest in the former case, and not in the latter. This
distinction actually protects the values associated with the right to jury trial, by
forbidding retroactive loss of a benefit reasonably anticipated by that class of
aliens who gave up their valuable right to jury trial. M r. Garcia-Ortiz cites no
case finding an equal protection violation based on this sort of retroactivity
analysis, and we have found none.
The existence of 8 C.F.R. § 1212.3(h), does not change our analysis. This
regulation merely codifies the decision in St. Cyr, by extending to aliens who
pleaded guilty (and, hence, demonstrated an objectively reasonable reliance
interest), an explicit opportunity to apply for § 212(c) relief. The fact that it does
not permit aliens who went to trial to apply for such relief “under the provisions
of this paragraph,” § 1212.3(h), does not affirmatively foreclose such aliens from
seeking § 212(c) relief by arguing that a sufficient objective reliance interest
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requires that the repeal should not be applied to them. Indeed, M r. Garcia-Ortiz
has made such an argument, albeit unsuccessfully, in this case.
The petition for review is DENIED.
Entered for the Court
M ary Beck Briscoe
Circuit Judge
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