NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 26, 2011
Decided February 1, 2011
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐2806
DIONICIO GUERRERO, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A091‐177‐700
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Dionicio Guerrero was ordered removed by an immigration judge on the basis of a 1995
aggravated‐felony conviction. He argues that he should be permitted to apply for a waiver of
removal under § 212(c) of the Immigration and Nationality Act. That section was repealed in
1996, however, and this court held just one year ago that the repeal of § 212(c) is not
impermissibly retroactive when applied to aliens who, like Guerrero, were convicted at trial
and chose not to appeal. Because Guerrero’s only argument is squarely foreclosed by recent
precedent, we deny his petition for review.
Guerrero, a citizen of Mexico, entered the United States illegally in 1980. Taking
advantage of the amnesty provision of the Immigration Reform and Control Act of 1986, he
became a lawful permanent resident in 1990. See 8 U.S.C. § 1255a. In 1995 he was convicted,
No. 10‐2806 Page 2
after a trial, of the manufacture or delivery of more than 500 grams of marijuana in violation
of Illinois law and was sentenced to two years’ probation; he did not appeal. See 720 ILCS
550/5(e). But that incident was his only brush with the law. Steadily employed at the same
direct‐mail company since 1996, he has worked his way up to the position of shipping manager.
He was married in 1999 and has lived with his wife in the same house in Chicago ever since.
And in 2005 he became a father; his daughter is an American citizen.
Nevertheless in 2008 the Department of Homeland Security charged that Guerrero’s
1995 conviction is an aggravated felony that renders him removable. See 8 U.S.C.
§§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). Appearing before an immigration judge, Guerrero
conceded that he is removable and that his aggravated‐felony conviction disqualifies him from
seeking cancellation of removal. See id. § 1229b(a)(3). He insisted, however, that he is eligible
to apply for a waiver of removal under § 212(c) of the Immigration and Nationality Act.
Section 212(c) once authorized the attorney general to grant discretionary relief to aliens who,
despite being convicted of an aggravated felony, had served a term of less than five years’
imprisonment. But that section was repealed by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. Even so, Guerrero argued, because he had relied on the availability
of § 212(c) when he decided not to appeal his aggravated‐felony conviction in 1995, it would
be “impermissibly retroactive” to deny him the opportunity to seek such relief now. Neither
the immigration judge nor the Board of Immigration Appeals was convinced.
In his petition for review, Guerrero renews his argument that the repeal of § 212(c)
should not apply to him. He relies on Landgraf v. USI Film Products, 511 U.S. 244 (1994), which
established general principles governing when a statute may be applied retroactively, as well
as INS v. St. Cyr, 533 U.S. 289 (2001), which held that the repeal of § 212(c) does not apply
retroactively to aliens who pleaded guilty to removable offenses before 1996. “Now that
prosecutors have received the benefit of these plea agreements, agreements that were likely
facilitated by the aliens’ belief in their continued eligibility for § 212(c) relief,” the Supreme
Court reasoned in St. Cyr, “it would surely be contrary to ‘familiar considerations of fair notice,
reasonable reliance, and settled expectations’ . . . [to] deprive them of any possibility of such
relief.” 533 U.S. at 323‐24. Guerrero, of course, did not plead guilty but instead was convicted
after a trial. No matter, he argues; like those aliens who gave up their right to trial by entering
into a plea agreement, he too forwent a legal right in reliance on the availability of § 212(c) relief
by declining to appeal his conviction.
The problem for Guerrero, however, is that we recently rejected that very contention in
Canto v. Holder, 593 F.3d 638 (7th Cir.), cert. denied, 131 S. Ct. 85 (2010). Canto held that the
repeal of § 212(c) is not impermissibly retroactive when applied to aliens who were convicted
of an aggravated felony at trial but did not appeal. We began our analysis by observing that,
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in determining when the repeal of § 212(c) is impermissibly retroactive, the Supreme Court
favors “a categorical approach over an individualized analysis.” Canto, 593 F.3d at 644. The
question is whether it would have been objectively reasonable for a particular category of aliens
to rely on the availability of § 212(c) in abandoning a legal right. Id. We reasoned that
Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004), already established that “the category of
aliens who went to trial did not forgo any possible benefit in reliance on section 212(c).” Id.
And, we continued, that category “necessarily includes those aliens [who] went to trial, but
chose not to appeal.” Id. Even if aliens who went to trial but chose not to appeal ought to
considered separately, we concluded, the argument still would be doomed because it is
implausible that those aliens gave up their right to appeal in reliance on § 212(c). Id. at 645.
Guerrero doesn’t address Canto in his opening brief (in fact he doesn’t even cite it). In
his reply brief, however, he insists that Canto must be overruled because its reasoning runs
contrary to Landgraf and St. Cyr. In support he points out that the Tenth Circuit has adopted
his argument that the repeal of § 212(c) may not be applied retroactively to aliens who were
convicted at trial but gave up the right to appeal. See Hem v. Maurer, 458 F.3d 1185, 1199‐1200
(10th Cir. 2006). And he admonishes Canto for failing to address Judge Rovner’s concurring
opinion in United States v. De Horta Garcia, 519 F.3d 658, 664‐66 (7th Cir. 2008), which suggested
that this court ought to revamp its retroactivity analysis and inquire not whether a party relied
on the prior law but rather whether the change in law has altered the legal consequences of
prior actions.
Canto has not been undermined by any supervening development, which means that
the decision is entitled to “considerable weight” and that Guerrero must produce a “compelling
reason” to justify overturning it. See Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006)
(citations omitted). He has not. At best he has articulated a solid defense of the Tenth Circuit’s
reasoning in Hem, as well as Judge Rovner’s concurring opinion in De Horta Garcia. Simply
rehashing those previously considered arguments, however, does not provide a compelling
reason to revisit Canto. See Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d 853, 858‐59
(7th Cir. 2001). Even showing that Canto was decided wrongly would not be enough. See Tate
v. Showboat Marina Casino P’ship, 431 F.3d 580, 582‐83 (7th Cir. 2005).
Guerrero also cites the messy circuit split regarding the broader question whether the
repeal of § 212(c) is impermissibly retroactive when applied to aliens who put the government
to its proof at trial. Compare Kellermann v. Holder, 592 F.3d 700, 707 (6th Cir. 2010) (applying
categorical approach to hold that repeal of § 212(c) is not impermissibly retroactive), Ferguson
v. Att’y Gen., 563 F.3d 1254, 1271 (11th Cir. 2009), cert. denied, 130 S. Ct. 1735 (2010) (same);
Montenegro, 355 F.3d at 1037 (same); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002) (same);
Armendariz‐Montoya v. Sonchik, 291 F.3d 1116, 1121‐22 (9th Cir. 2002) (same), with Lovan v.
No. 10‐2806 Page 4
Holder, 574 F.3d 990, 993‐94 (8th Cir. 2009) (applying categorical approach to hold that repeal
of § 212(c) is impermissibly retroactive); Atkinson v. Att’y Gen., 479 F.3d 222, 229‐31 (3d Cir.
2007) (same); Hem, 458 F.3d at 1199‐1200 (same), and Carranza–de Salinas v. Gonzales, 477 F.3d
200, 209‐10 (5th Cir. 2007) (applying individualized approach and requiring actual reliance);
Wilson v. Gonzales, 471 F.3d 111, 122 (2d Cir. 2006) (same); Chambers v. Reno, 307 F.3d 284, 290‐91
(4th Cir. 2002) (same). But overruling Montenegro and Canto would neither eliminate the
conflict altogether nor advance a new line of argument; “restless movement” to another side
of the circuit split would waste judicial resources on a disagreement that only the Supreme
Court can resolve. See Buchmeier v. United States, 581 F.3d 561, 565‐66 (7th Cir. 2009) (en banc).
DENIED.